UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
================================
(Mark One)
/x/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ---------------- to -----------------
Commission file number 0-21459
AmerUs Life Holdings, Inc.
-----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Iowa 42-1459712
- ------------------------------------------------------------------------------
(State of other jurisdiction of (IRS employer identification no.)
incorporation or organization)
699 Walnut Street, Des Moines, Iowa 50309-3948
- ------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (515) 362-3600
- ------------------------------------------------------------------------------
Former name, former address and formal fiscal year, if changed since last report
Indicate by check /x/ whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes /x/ No //
The number of shares outstanding of each of the registrant's classes of common
stock on August 11, 1998 was as follows:
Class A, Common Stock 29,734,918 shares
Class B, Common Stock 5,000,000 shares
Exhibit index - Page -- 38
Page 1 of 47 <PAGE>
INDEX
Page No.
Part I - Financial Information . . . . . . . . . . . . . . . . . . . .3
Item 1. Consolidated Financial Statements . . . . . . . . . . . . . .3
Consolidated Balance Sheets June 30, 1998
(Unaudited) and December 31, 1997 . . . . . . . . . . . . . . . .3
Consolidated Statements of Income (Unaudited) - For
the Six Months Ended June 30, 1998 and 1997 and the
Three Months Ended June 30, 1998 and 1997 . . . . . . . . . . . .6
Consolidated Statement of Comprehensive Income
(Unaudited - For the Six Months Ended June 30, 1998
and 1997 and the Three Months Ended June 30, 1998 and 1997) . . .8
Consolidated Statements of Cash Flows (Unaudited) -
For the Six Months Ended June 30, 1998 and 1997 . . . . . . . . .9
Notes to Consolidated Financial Statements
(Unaudited). . . . . . . . . . . . . . . . . . . . . . . .. . . 12
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition . . . . . . . . .17
Part II - Other Information . . . . . . . . . . . . . . . . . . .. . 35
Item 4. Submission of Matters to a Vote of Security
Holders . . . . . . . . . . . . . . . . . . . . . . . .. . . 35
Item 6. Exhibits and Reports on Form 8-K. . . . . . . . . . . . . . 36
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Exhibit Index . . . . . . . . . . . . . . . . . . . . . . . . . .. . 38<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
AMERUS LIFE HOLDINGS, INC.
CONSOLIDATED BALANCE SHEETS
(Dollars In thousands)
June 30, December 31,
1998 1997
-------------- ---------------
(Unaudited)
<S> <C> <C>
Assets
Investments:
Securities available-for-sale at fair value:
Fixed maturity securities $6,745,359 $6,851,427
Equity securities 82,340 61,480
Short-term investments 31,120 12,595
Securities held for trading purposes at
fair value
Fixed maturity securities 894 22,955
Equity securities 449 -
Mortgage loans on real estate 512,717 462,473
Real estate 3,766 8,670
Policy loans 111,593 117,865
Other investments 220,844 158,073
----------- -----------
Total investments 7,709,082 7,695,538
Cash 160,061 58,081
Accrued investment income 81,801 84,713
Premiums and fees receivable 2,712 3,445
Reinsurance receivables 5,033 6,203
Deferred policy acquisition costs 166,945 118,896
Value of business acquired 252,903 266,014
Investment in unconsolidated subsidiaries 27,940 26,849
Goodwill 216,677 220,250
Property and equipment 23,548 22,863
Other assets 344,698 359,308
Closed block assets 1,478,152 1,391,848
----------- -----------
Total assets $10,469,552 $10,254,008
=========== ===========
Liabilities and Stockholders' Equity
Liabilities
Policy reserves and policyowner funds:
Future life and annuity
policy benefits $7,091,756 $7,074,444
Policyowner funds 92,569 89,641
---------- ----------
Total 7,184,325 7,164,085
Accrued expenses 37,999 39,095
Dividends payable to policyowners 585 1,575
Policy and contract claims 6,416 4,548
Income taxes payable 27,614 12,753
Deferred income taxes 7,686 16,914
Other liabilities 164,944 111,180
Debt 275,856 266,435
Closed block liabilities 1,717,216 1,623,432
----------- -----------
Total liabilities 9,422,641 9,240,017
------------ ------------
Company obligated mandatorily redeemable preferred
capital securities of subsidiary trust holding
solely junior subordinated debentures of the
Company 86,000 86,000
Stockholders' equity
Preferred stock, no par value,
20,000,000 shares authorized,
none issued - -
Common stock, Class A, no par value,
180,000,000 shares authorized 1998;
75,000,000 shares authorized 1997;
29,734,918 shares issued and
outstanding, less treasury stock 29,735 29,735
Common stock, Class B, no par value,
50,000,000 shares authorized;
5,000,000 shares issued and
outstanding 5,000 5,000
Paid in capital 383,686 383,686
Accumulated other comprehensive income 54,614 55,747
Retained earnings 489,498 453,823
Cost of treasury stock (1,622) -
---------- ----------
Total stockholders' equity 960,911 927,991
---------- ----------
Total liabilities and
stockholders' equity $10,469,552 $10,254,008
=========== ===========
/TABLE
<PAGE>
AMERUS LIFE HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Dollars in thousands, except share data)
(unaudited)
<TABLE>
Six Months Ended Three Months Ended
June 30, June 30,
---------------- ---------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues:
Insurance premiums $38,726 $20,928 $21,432 $12,752
Universal life and annuity
product charges 34,252 23,411 17,872 12,229
Net investment income 259,995 99,226 126,822 48,308
Realized gains on investments 10,783 9,523 4,564 4,264
Contribution from the
Closed Block 16,836 13,410 7,861 4,136
------- ------- ------- -------
360,592 166,498 178,551 81,689
------- ------- ------- -------
Benefits and expenses:
Policyowner benefits 219,286 86,999 111,930 41,478
Underwriting, acquisition, and
insurance expenses 38,449 22,438 17,215 11,421
Amortization of deferred policy
acquisition costs on policies
purchased or produced 30,688 10,973 15,750 5,916
Dividends to policyowners 710 173 395 52
------- ------- ------- -------
289,133 120,583 145,290 58,867
------- ------- ------- -------
Income from operations 71,459 45,915 33,261 22,822
Interest expense 12,610 5,961 5,928 3,014
------- ------- ------- -------
Income before income tax expense
and equity in earnings of
unconsolidated subsidiary 58,849 39,954 27,333 19,808
Income tax expense 17,319 11,586 7,142 5,847
------- ------- ------- -------
Income before equity in earnings
of unconsolidated subsidiary 41,530 28,368 20,197 13,961
Equity in earnings of unconsolidated
subsidiary 1,091 654 673 481
------- ------- ------- -------
Net income $42,621 $29,022 $20,864 $14,442
======= ======= ======= =======
Earnings per common share
Basic $1.23 $1.25 $0.60 $0.62
Diluted $1.21 $1.25 $0.60 $0.62
===== ===== ===== =====
Weighted average Common
Shares outstanding
Basic 34,733,710 23,155,989 34,732,514 23,155,989
Diluted 35,086,382 23,155,989 35,021,958 23,155,989
/TABLE
<PAGE>
AMERUS LIFE HOLDINGS, INC.
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
(Dollars in thousands)
(Unaudited)
<TABLE>
Six Months Three Months
Ended June 30, Ended June 30,
------------- --------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $ 42,621 $29,022 $20,864 $14,442
Other comprehensive (loss), net of tax:
Unrealized gains on securities:
Unrealized holding gains arising
during period (net of deferred tax of
$(2,175) and $(677) for the six
months ended and $(996) and $13,711
for the three months ended) 4,039 1,258 1,849 (25,462)
Less: reclassification adjustment
for gains included in net income
(net of deferred tax of $5,286
and $3,782 for six months ended
and $1,530 and $1,606 for three
months ended) (5,172) (5,515) (1,334) (2,342)
------- ------- ------ -----
Other comprehensive income (loss) (1,133) (4,257) 515 (27,804)
------- ------- ------ ------
Comprehensive income $41,488 $24,765 $21,379 ($13,362)
======= ======= ====== =======
/TABLE
<PAGE>
AMERUS LIFE HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(unaudited)
<TABLE>
Six Months Ended June 30,
--------------------------
1998 1997
------ ------
<S> <C><C>
Cash flows from operating activities:
Net income $42,621 $29,022
Adjustments to reconcile net
income to net cash provided
by operating activities:
Policyowner assessments on
universal life and annuity products (34,252) (20,287)
Interest credited to
policyowner account balances 91,522 53,137
Realized investment (gains) losses (10,783) (9,523)
Change in:
Accrued investment income 2,912 (2,650)
Reinsurance ceded receivables 1,170 (635)
Deferred policy acquisition
costs (36,875) (12,195)
Liabilities for future
policy benefits 83,435 (16,381)
Policy and contract claims
and other policyowner funds 1,868 (1,627)
Income taxes:
Current 16,433 4,183
Deferred (6,465) (5,718)
Other, net 6,862 20,347
Change in Closed Block assets
and liabilities, net 109,318 68,656
---------- ----------
Net cash provided by operating
activities 267,766 106,329
---------- ----------
<PAGE>
Cash flows from investing activities:
Purchase of fixed maturities
available for sale (1,865,403) (620,969)
Maturities, calls, and principal
reductions of fixed maturities
available for sale 2,017,374 538,801
Purchase of equity securities (112,055) (23,042)
Proceeds from sale of equity
securities 119,296 26,706
Proceeds from repayment and sale
of mortgage loans 44,265 26,174
Purchase of mortgage loans (99,077) (30,653)
Proceeds from sale of real estate
and other invested assets 15,317 -
Purchase of real estate and other
invested assets (65,796) 14,670
Change in policy loans, net 6,272 (882)
Tax on capital gains 12,507 (3)
Other assets, net 16,379 39,271
Change in Closed Block
investments, net (106,115) (41,758)
---------- ---------
Net cash used in investing
activities (17,036) (71,685)
---------- ---------
Cash flows from financing activities:
Deposits to policyowner account
balances 421,044 63,191
Withdrawals from policyowner
account balances (570,647) (123,775)
Change in debt, net 9,421 (106,833)
Purchase of treasury stock (1,622) -
Initial public offering of
common stock - 55,027
Dividends to shareholders (6,946) (2,316)
Issuance of company-obligated
mandatory redeemable
capital securities - 86,000
--------- ---------
<PAGE>
Net cash used in financing
activities (148,750) (28,706)
------ ------
Net (decrease) increase in cash 101,980 5,938
Cash at beginning of period 58,081 1,814
------- -------
Cash at end of period $160,061 $7,752
======== ======
Supplemental disclosure of cash
activities:
Interest paid $12,069 $2,919
======= ======
Income taxes paid $24,541 $26,235
====== =======
/TABLE
<PAGE>
AMERUS LIFE HOLDINGS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for annual
financial statements. In the opinion of management, all adjustments considered
necessary for a fair presentation have been included. All adjustments were of a
normal recurring nature, unless otherwise noted in Management's Discussion and
Analysis and the Notes to Financial Statements. Operating results for the three
months and six months ended June 30, 1998 are not necessarily indicative of the
results that may be expected for the year ending December 31, 1998. For further
information and for capitalized terms not defined in this 10-Q, refer to the
consolidated financial statements and notes thereto included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997.
SFAS 130
On January 1, 1998, the Company adopted SFAS 130, "Reporting Comprehensive
Income," and restated prior years' financial statements to conform to the
reporting standard. SFAS 130 establishes standards for reporting and displaying
comprehensive income and its components in a full set of general-purpose
financial statements. Comprehensive income includes all changes in
shareholders' equity during a period except those resulting from investments by
owners and distributions to owners. The adoption of SFAS 130 resulted in
revised and additional disclosures but had no effect on the financial position,
results of operations, or liquidity of the Company.
SFAS 131
On January 1, 1998, the Company adopted SFAS 131, "Disclosures about
Segments of an Enterprise and Related Information." SFAS 131 establishes
standards for the way that public businesses report information about operating
segments in financial statements. Operating segments are components of an
enterprise about which separate financial information is available that is
evaluated regularly by the chief operating decision maker in deciding how to
allocate resources and assess performance. Generally, financial information is
required to be reported on the basis that it is used internally for evaluating
segment performance and deciding how to allocate resources to segments. The
provisions of SFAS 131 are of a reporting nature and have no impact on the
financial position or results of operations of the Company, as the life
insurance and annuity operation is the Company's only business segment.
Certain amounts in the 1997 financial statements have been reclassified to
conform to the 1998 financial statement presentation.
EARNINGS PER COMMON SHARE
The Company adopted the provisions of SFAS 128 "Earnings per Share" at
December 31, 1997, which had no effect on the Company's previously reported
earnings per share information. Basic earnings per share of common stock are
computed by dividing net income by the weighted-average number of common shares
outstanding during the period. Diluted earnings per share assumes the issuance
of common shares applicable to stock options and warrants calculated using the
treasury stock method.
(2) CLOSED BLOCK
Summarized financial information of the Closed Block balance sheet as of
June 30, 1998 and December 31, 1997 and statements of income for the six months
and three months ended June 30, 1998 and 1997 are as follows (in thousands):
Assets:
<TABLE>
June 30, 1998 December 31, 1997
--------------- ------------------
<S> <C> <C>
Fixed maturity securities, at fair value $1,083,852 $1,053,066
Short-term investments, at fair value 55,320 660
Policy loans 178,076 168,368
Other investments 5,619 591
Cash 1,678 21
Accrued investment income 12,674 12,617
Premiums and fees receivable 3,009 3,591
Deferred policy acquisition costs 130,947 143,765
Other assets 6,977 9,169
---------- ----------
$1,478,152 $1,391,848
========== ==========
Liabilities:
Future life and annuity policy benefits $1,480,559 $1,448,725
Policyowner funds 6,937 6,786
Accrued expenses 1,349 5,980
Dividends payable to policyowners 147,560 135,985
Policy and contract claims 5,607 5,966
Other liabilities 75,204 19,990
---------- ----------
$1,717,216 $1,623,432
========== ==========
/TABLE
<PAGE>
<TABLE>
Six months ended Six months ended
June 30, 1998 June 30, 1997
------------------ ------------------
<S> <C> <C>
Revenues and Expenses:
Insurance premiums $99,932 $104,994
Universal life and annuity
product charges 7,266 6,883
Net investment income 57,339 54,278
Realized gains on investments 8,177 (989)
Policyowner benefits (99,372) (105,258)
Underwriting, acquisition, and
insurance expenses (2,886) (2,821)
Amortization of deferred policy
acquisition costs on policies produced (12,818) (14,111)
Dividends to policyowners (40,802) (29,566)
------ ------
Contribution from the Closed Block
before income taxes $16,836 $13,410
====== ======
</TABLE>
<TABLE>
Three months ended Three months ended
June 30, 1998 June 30, 1997
------------------ ------------------
<S> <C> <C>
Revenues and Expenses:
Insurance premiums $49,516 $50,064
Universal life and annuity
product charges 3,745 3,152
Net investment income 28,156 27,977
Realized gains on investments 7,308 (416)
Policyowner benefits (50,341) (55,527)
Underwriting, acquisition, and
insurance expenses (1,525) (1,334)
Amortization of deferred policy
acquisition costs on policies produced (4,784) (7,280)
Dividends to policyowners (24,214) (12,500)
------ ------
Contribution from the Closed Block
before income taxes $7,861 $4,136
====== ======
</TABLE>
(3) DEBT AND CAPITAL SECURITIES
Debt consists of the following (in thousands):
<TABLE>
June 30, December 31,
1998 1997
------------ ----------------
(Unaudited)
<S> <C> <C>
Federal Home Loan Bank short-term loan
with an interest rate of 5.88% $ 9,610 $ -
Federal Home Loan Bank community
investment long-term advances
with a weighted average interest
rate of 6.35% at June 30, 1998 16,246 16,435
Revolving credit agreement bearing
interest at 6.34% as of June 30, 1998 125,000 250,000
Senior Notes bearing interest at
6.95% due June 2005 125,000 -
-------- --------
$275,856 $266,435
======== ========
</TABLE>
On June 16, 1998, the Company issued $125,000,000 of 6.95% senior notes due
June 15, 2005. The proceeds of the offering were utilized to pay down amounts
owing under the revolving credit agreement and the commitment under that credit
facility was reduced from $250 million to $150 million.
For an additional discussion of the terms of the other above
indebtedness, refer to the Company's consolidated financial statements as of
December 31, 1997.
On February 3, 1997, the Company issued $86,000,000 of 8.85% Capital
Securities, Series A, through a wholly-owned subsidiary trust. The sole asset
of the trust is the junior subordinated debentures of the Company in the
principal amount of $88.66 million with interest at 8.85% maturing February 1,
2027. The Company has fully and unconditionally guaranteed the obligation of
the trust under the Capital Securities and is obligated to mandatorily redeem
the securities on February 1, 2027. The Company may prepay the securities at
anytime after February 1, 2007.
(4) FEDERAL INCOME TAXES
The effective income tax rate for the period ending March 31, 1998 was
lower than the prevailing corporate rate primarily as a result of earned low
income housing and historic rehabilitation credits.
(5) COMMITMENTS AND CONTINGENCIES
AmerUs Life Insurance Company ("AmerUs Life") and its joint venture partner
are contingently liable in the event the joint venture, Ameritas Variable Life
Insurance Company ("AVLIC"), cannot meet its policyholder obligations. At June
30, 1998, AVLIC had statutory assets of $1,687.6 million, liabilities of
$1,642.3 million, and surplus of $45.3 million.
(6) RELATED PARTY TRANSACTIONS
AmerUs Life had a master agreement of purchase and sale with AmerUs Bank,
whereby AmerUs Life agreed to purchase whole loans from AmerUs Bank from time to
time. AmerUs Life also had a loan servicing agreement with AmerUs Bank, whereby
AmerUs Bank acted as servicer of the loans and received a servicing fee ranging
from 50 to 58 basis points of the outstanding principal balances of the loans.
During the six months ended June 30, 1998, AmerUs Life purchased loans with a
total outstanding principal balance of $109.4 million at a $6.8 million
premium. Both agreements with AmerUs Bank were terminated on July 31, 1998.
Similar arrangements were entered into with AmerUs Home Equity, a wholly-owned
subsidiary of AmerUs Group Co.
(7) ACQUISITIONS
On October 23, 1997, the Company acquired all of the outstanding capital
stock of Delta Life Corporation ("Delta") in exchange for cash of approximately
$165 million. The acquisition was accounted for using the purchase method of
accounting with goodwill of $69.4 million established which is being amortized
on a straight-line basis over 30 years.
On December 19, 1997, the Company acquired AmVestors Financial Corporation
in a stock exchange valued at approximately $350 million. The acquisition was
accounted for using the purchase method of accounting with goodwill of $152.9
million established which is being amortized on a straight-line basis over 30
years.
(8) SUBSEQUENT EVENT
On July 27, 1998, the Company completed the public offering of 4,150,000
units of 7% Adjustable Conversion-rate Equity Security Units. The unit price
was $31.5625 with net proceeds to the Company of $127,513,315. Each unit
consists of a forward common stock purchase contract and a quarterly income
preferred security bearing interest at 6.86% and due July 27, 2003.
<PAGE>
AmerUs Life Holdings, Inc. June 30, 1998
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Overview
The Company is a holding company engaged through its subsidiaries in the
business of marketing, underwriting and distributing a broad range of individual
life insurance and annuity products to individuals and business in 49 states,
the District of Columbia and the US Virgin Islands. The Company's primary
product offerings consist of whole life, universal life and term life insurance
policies and fixed annuities. Since April 1, 1996 the Company has been a party
to the Ameritas Joint Venture with Ameritas Life Insurance Corp., through which
it markets fixed annuities and sells variable annuities and variable life
insurance products.
In accordance with GAAP, universal life insurance premiums and annuity
deposits received are reflected as increases in liabilities for policyowner
account balances and not as revenues. Revenues reported for universal life and
annuity products consist of policy charges for the cost of insurance,
administration charges and surrender charges assessed against policyowner
account balances. Surrender benefits paid relating to universal life insurance
policies and annuity products are reflected as decreases in liabilities for
policyowner account balances and not as expenses. Amounts for interest credited
to universal life and annuity policyowner account balances and benefit claims in
excess of policyowner account balances are reported as expenses in the financial
statements. The Company receives investment income earned from the funds
deposited into account balances by universal life and annuity policyowners, the
majority of which is passed through to such policyowners in the form of interest
credited.
Premium revenues reported for traditional life insurance products are
recognized as revenues when due. Future policy benefits and policy acquisition
costs are recognized as expenses over the life of the policy by means of a
provision for future policy benefits and amortization of deferred policy
acquisition costs.
The costs related to acquiring new business, including certain costs of
issuing policies and certain other variable selling expenses (principally
commissions), defined as deferred policy acquisition costs, are capitalized and
amortized as an expense primarily in proportion to expected profits or margins
from such policies. This amortization is adjusted when current or estimated
future gross profits or margins on the underlying policies vary from previous
estimates. For example, the amortization of deferred policy acquisition costs is
accelerated when policy terminations are higher than originally estimated or
when investments supporting the policies are sold at a gain prior to their
anticipated maturity. Death and other policyowner benefits reflect exposure to
mortality risk and fluctuate from period to period based on the level of claims
incurred within insurance retention limits. The profitability of the Company is
primarily affected by expense levels, interest spread results (i.e., the excess
of investment earnings over the interest credited to policyowners) and
fluctuations in mortality, persistency and other policyowner benefits. The
Company has the ability to mitigate adverse experience through adjustments to
credited interest rates, policyowner dividends or cost of insurance charges.
Sales
The following table sets forth information regarding the Company's sales
activity by product:
<TABLE>
Sales Activity by Product
For the Six For the Three
Months Ended Months Ended
June 30, June 30,
---------------- ---------------
($ in thousands) 1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Individual life insurance:
Participating whole life $ 8,474 $ 8,603 $4,904 $4,018
Universal life 4,325 3,666 2,149 1,560
Term life 3,094 1,756 1,638 1,193
-------- ------- -------- ------
Total life insurance (A) $15,893 $14,025 $8,691 $6,771
======== ======= ======== ======
Annuities (B) $389,731 $25,611 $215,035 $13,067
======== ======= ======== =======
(A) Direct first year annualized premiums
(B) Direct collected premiums
</TABLE>
Life insurance sales as measured by annualized premiums increased by $1.9
million, or 13.3%, for the six months, and increased by $1.9 million, or 28.4%,
for the three months ended June 30, 1998, from the same periods in 1997. As a
result of the introduction of new term products during the first quarter of 1997
and the introduction of three new term plans in January, 1998, sales of term
life insurance products during the first six months of 1998 increased by $1.3
million or 76.2%, from the same period in 1997. Sales of term life insurance
during the quarter ended June 30, 1998 increased by $0.4 million, or 37.3%, from
the same period in 1997. Sales of universal life insurance increased by $0.7
million and by $0.6 million for the six months and three months ended June 30,
1998, respectively, from the same periods in 1997. Increased sales of universal
life are attributable to the introduction of a new second-to-die universal life
product during the third quarter of 1997. Sales of participating whole life
insurance increased during the second quarter of 1998 and for the first six
months of 1998 are nearly level with the first six months of 1997. Annuity
sales for the first six months of 1998 include $45.2 million and $322.3 million
from Delta Life Corporation ("Delta") and AmVestors Financial Corporation
("AmVestors"), respectively, companies acquired in the fourth quarter of 1997.
Annuity sales for the quarter ended June 30, 1998 include $24.1 million and
$179.3 million from Delta and AmVestors, respectively.
Premium Receipts
The following table sets forth the Company's collected premiums, including
collected premiums associated with the Closed Block, for the periods indicated:
<TABLE>
Collected Premiums by Product
For the Six Months Ended For the Three Months Ended
June 30, June 30,
-------------------------- ----------------------
($ in thousands) 1998 1997 1998 1997
------ ------ ------ ------
<S> <C> <C> <C> <C>
Direct individual life premiums collected:
Traditional life:
First year & single $ 39,302 $ 35,841 $19,791 $17,602
Renewal 86,973 83,703 41,961 41,021
-------- -------- ------- -------
Total $126,275 $119,544 $61,752 $58,623
======== ======== ======= =======
Universal life:
First year & single $ 8,733 $ 6,992 $ 4,655 $ 3,063
Renewal 37,408 37,585 18,329 18,741
-------- -------- ------- -------
Total $ 46,141 $ 44,577 $22,984 $21,804
======== ======== ======= =======
Total direct life $172,416 $164,121 $ 84,736 $ 80,427
Reinsurance assumed 408 814 311 468
Reinsurance ceded (5,423) (4,926) (2,587) (2,485)
------- -------- -------- --------
Total individual life,
net of reinsurance $167,401 $160,009 $82,460 $ 78,410
======= ======== ======= ========
Direct annuity premiums collected:
Individual $388,676 $ 25,611 $214,688 $ 13,067
Group 1,055 - 347 -
-------- -------- -------- --------
Total annuities 389,731 25,611 215,035 13,067
Reinsurance ceded (1,058) (281) (91) (101)
-------- -------- -------- --------
Total annuities, net
of reinsurance $388,673 $25,330 $214,944 $12,966
======== ======= ======== =======
Other collected premiums, net
of reinsurance $ (359) $ 119 $(305) $52
====== ====== ====== ======
Total collected premiums,
net of reinsurance $555,715 $185,458 $297,099 $91,428
======== ======== ======== =======
</TABLE>
Annuity premiums, net of reinsurance, for the six months and three months
ended June 30, 1998, include $366.6 million and $203.4 million, respectively,
from Delta and AmVestors, in the aggregate.
Life Insurance and Annuities in Force
The following table sets forth information regarding the Company's life
insurance and annuities in force for each date presented:
<TABLE>
Life Insurance and Annuities in Force
As of June 30,
------------------
($ in thousands) 1998 1997
------ ------
<S> <C> <C>
Individual life insurance:
Traditional life
Number of policies 255,767 252,101
GAAP life reserves $1,509,997 $1,254,953
Face amounts $18,764,000 $17,113,000
Universal life
Number of policies 116,409 118,720
GAAP life reserves $881,951 $835,914
Face amounts $12,116,000 $12,125,000
Total life insurance
Number of policies 372,176 370,821
GAAP life reserves $2,391,948 $2,090,867
Face amounts $30,880,000 $29,238,000
Annuities:
Number of policies 189,279 52,654
GAAP reserves $6,159,895 $1,290,683
Group life insurance:
Number of lives 16,573 30,235
Face amounts $438,000 $870,000
</TABLE>
Included in the June 30,1998 annuity amounts are approximately 152,000 policies
and $4.9 billion of GAAP reserves from Delta and AmVestors. The Company sold
substantially all of its group life business as of July 1, 1996 and is no longer
actively marketing this line of business.
Adjusted Operating Income
The following table reflects net income adjusted to eliminate certain
items (net of applicable income taxes) which management believes are not
necessarily indicative of overall operating trends. For example, net realized
capital gains or losses on investments, excluding gains or losses on convertible
debt which are considered core earnings, are eliminated. Different items are
likely to occur in each period presented and others may have different opinions
as to which items may warrant adjustment. The adjusted operating income shown
below does not constitute net income computed in accordance with GAAP.
<TABLE>
For the Six Months Ended For the Three Months Ended
June 30, June 30,
-------------------------- -------------------------
1998 1997 1998 1997
---- ---- ---- ----
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Net income $42,621 $29,022 $20,864 $14,442
Net realized (gains) losses
on investments (A) (3,147) (5,188) (882) (2,207)
------- ------- ------- -------
Adjusted operating income $39,474 $23,834 $19,982 $12,235
======= ======= ======= =======
Adjusted operating income per
common share (B):
Basic $ 1.14 $1.03 $0.58 $0.53
Diluted $ 1.13 $1.03 $ 0.57 $0.53
(A) Represents non-core realized gains or losses on investments less that
portion of the amortization of deferred policy acquisition costs adjusted
for income taxes on such amounts. Realized gains may vary widely between
periods. Such amounts are determined by management's timing of individual
transactions and do not necessarily correspond to the underlying operating
trends.
(B) Basic adjusted operating income per common share for the six months ended
and three months ended June 30, 1998 is calculated using 34.73 million
weighted average shares of common stock outstanding. Diluted adjusted
operating income per common share for the six months ended June 30, 1998 is
calculated using 35.09 million weighted average shares outstanding. Diluted
adjusted operating income per common share for the three months ended June
30, 1998 is calculated using 35.02 million weighted average shares of
common stock outstanding. The basic and diluted adjusted operating income
per common share for the six months and three months ended June 30, 1997 is
calculated using 23.16 million shares of common stock outstanding.
</TABLE>
The Closed Block
The Closed Block was established on June 30, 1996. Insurance policies which
had a dividend scale in effect as of June 30, 1996 were included in the Closed
Block. The Closed Block was designed to provide reasonable assurance to owners
of insurance policies included therein that, after the Company's reorganization,
assets would be available to maintain the dividend scales and interest credits
in effect prior to the Company's reorganization if the experience underlying
such scales and credits continues.
The contribution to the operating income of the Company from the Closed
Block is reported as a single line item in the income statement. Accordingly,
premiums, product charges, investment income, realized gains or losses on
investments, policyowner benefits and dividends attributable to the Closed
Block, less certain minor expenses including amortization of deferred policy
acquisition costs, are shown as a net number under the caption the "Contribution
from the Closed Block." This results in material reductions in the respective
line items in the income statement while having no effect on net income. The
expenses associated with the administration of the policies included in the
Closed Block and the renewal commissions on these policies are not charged
against the Contribution from the Closed Block, but rather are grouped with
underwriting, acquisition and insurance expenses. Also, all assets allocated to
the Closed Block are grouped together and shown as a separate item entitled
"Closed Block Assets." Likewise, all liabilities attributable to the Closed
Block are combined and disclosed as the "Closed Block Liabilities."
<PAGE>
RESULTS OF OPERATIONS
SIX MONTHS AND THREE MONTHS ENDED JUNE 30, 1998 AND JUNE 30, 1997
A summary of the Company's revenues follows:
<TABLE>
For the Six Months For the Three Months
Ended June 30, Ended June 30,
------------------ -------------------
($ in thousands) 1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Insurance premiums
Traditional life insurance
premiums $ 22,244 $ 12,465 $12,103 $7,907
Immediate annuity and
supplementary contract
premiums 16,319 8,395 9,242 4,802
Other premiums 163 68 87 43
-------- -------- -------- -------
Total insurance premiums 38,726 20,928 21,432 12,752
Universal life product charges 23,281 23,003 11,617 11,974
Annuity product charges 10,971 408 6,255 255
-------- -------- -------- -------
Total product charges 34,252 23,411 17,872 12,229
Net investment income 259,995 99,226 126,822 48,308
Realized gains on investments 10,783 9,523 4,564 4,264
Contribution from the Closed Block 16,836 13,410 7,861 4,136
-------- -------- -------- -------
Total revenues $360,592 $166,498 $178,551 $81,689
======== ======== ======== =======
</TABLE>
Individual life and annuity premiums and product charges increased by $28.6
million, or 64.5%, for the six months and increased by $14.3 million, or 57.3%,
for the three months ended June 30, 1998 from the same periods in 1997.
Included in the 1998 increases were $16.5 million and $10.2 million of insurance
and annuity premium and product charges from Delta and AmVestors combined, for
the six month and three month period, respectively. Insurance premiums increased
by $17.8 million for the six month period and by $8.7 million for the three
month period ended June 30, 1998, compared to the same periods ended June 30,
1997. Included in the increased insurance premiums in 1998 were $6.3 million
and $4.4 million in aggregate from Delta and AmVestors for the six months and
three months ended June 30, 1998, respectively. Traditional life insurance
premiums increased by $9.8 million for the six months and increased by $4.2
million for the three months as a result of continued growth in renewal premiums
on traditional life insurance policies not included in the Closed Block (as
defined below), and increased sales in 1998 for both periods. Immediate annuity
deposits and supplementary contract premiums were $7.9 million higher for the
six months and $4.4 million higher for the three months ended June 30, 1998
compared to the same periods in 1997, with $6.1 million and $4.3 million in
aggregate from Delta and AmVestors for the 1998 six month and three month
periods, respectively. The increased premiums, exclusive of Delta and AmVestors,
for the six month period were primarily due to higher sales of immediate
annuities.
Universal life product charges increased by $0.3 million for the six months
ended June 30, 1998 primarily due to increased cost of insurance charges as a
result of the normal aging of the block of business. The product charges were
$0.3 million lower for the three months ended June 30, 1998 due to higher
reinsurance costs during the quarter compared to the same period in 1997.
Annuity product charges increased by $10.5 million and by $6.0 million for
the six months and three months ended June 30, 1998, respectively, due to the
inclusion of $10.2 million and $5.9 million of annuity product charges in
aggregate from Delta and AmVestors for the 1998 six month and three month
periods, respectively.
Net investment income increased by $160.7 million for the six months and
increased by $78.5 million for the three months ended June 30,1998 from the same
periods in 1997. Included in the 1998 increases in net investment income were
$162.9 million and $80.3 million in aggregate for Delta and AmVestors for the
six month and three month periods, respectively. The remaining $2.2 million and
$1.8 million decrease in net investment income for the six month and three month
periods were attributable to a decrease in average invested assets (excluding
market value adjustments, the Closed Block, Delta, and AmVestors) and lower
investment yields, primarily in the other asset and mortgage loan portfolios
partially offset by higher call premiums of $5.4 million and $4.4 million
for the six months and three months, respectively. Average invested assets
decreased by $51.6 million from the same period a year ago primarily due to
the continued runoff of AmerUs Life's individual deferred annuity business.
Effective May, 1996 substantially all new sales of individual deferred
annuities by AmerUs Life's distribution network have been made through
Ameritas Variable Life Insurance Company ("AVLIC").
Realized gains on investments were $10.8 million for the first six months
of 1998 and $4.6 million for the second quarter of 1998 compared to $9.5 million
and $4.3 million, respectively, for the same periods in 1997. Included in the
realized gains were $5.6 million and $3.6 million from Delta and AmVestors in
aggregate for the two periods in 1998. Gains on the convertible debt securities
considered to be a part of core operating earnings were $5.5 million and $2.7
million for the six months and three months ended June 30, 1998, respectively.
The level of realized gains is subject to fluctuation from period to period
depending on the prevailing interest rate and economic environment and the
timing of the sale of investments.
The Contribution from the Closed Block was $16.8 million and $7.8 million
for the six months and three months ended June 30, 1998, respectively. The
following table sets forth the operating results of the Closed Block for the
periods indicated.
<TABLE>
For the Six For the Three
Months Ended Months Ended
June 30, June 30,
---------------- ----------------
($ in thousands) 1998 1997 1998 1997
------ ------ ------ ------
<S> <C> <C> <C> <C>
Revenues
Insurance premiums $99,932 $104,994 $49,516 $50,064
Product charges 7,266 6,883 3,745 3,152
Net investment income 57,339 54,278 28,156 27,977
Realized gains (losses)
on investments 8,177 (989) 7,308 (416)
-------- -------- ------- -------
Total revenues $172,714 $165,166 $88,725 $80,777
Benefits and expenses
Policyowner benefits 99,372 105,258 50,341 55,527
Underwriting, acquisition and
insurance expenses 2,886 2,821 1,525 1,334
Amortization of deferred policy
costs 12,818 14,111 4,784 7,280
Dividends to policyowners 40,802 29,566 24,214 12,500
------- ------- ------ -------
Total benefits and expenses 155,878 151,756 80,864 $76,641
------- ------- ------ -------
Contribution from the Closed Block $16,836 $13,410 $7,861 $4,136
======= ======= ====== ======
</TABLE>
Closed Block insurance premiums decreased by $5.1 million for the six
months and by $0.6 million for the three months ended June 30, 1998. The
decrease in insurance premiums is consistent with the reduction of the Closed
Block's life insurance in force that is expected to continue over the life of
the block. Net investment income for the Closed Block increased by $3.1 million
for the six months and by $0.2 million for the three months ended June 30, 1998
due primarily to higher yields partially offset by a decrease in average
invested assets (excluding market value adjustments).
Realized gains on investments of the Closed Block were $9.2 million higher
for the six months and $7.7 million higher for the three months ended June 30,
1998 as compared to the same periods in 1997. The level of realized gains is
subject to fluctuation from period to period depending on the prevailing
interest rate and economic environment and the timing of the sale of
investments.
Closed block policyowner benefits decreased by $5.9 million for the six
months and by $5.2 million for the three months ended June 30, 1998 primarily
due to lower death benefits on Closed Block policies. The amortization of
deferred policy acquisition costs for the Closed Block decreased by $1.3 million
for the six months and by $2.5 million for the three months ended June 30, 1998.
Deferred policy acquisition costs are generally amortized in proportion to gross
margins, including realized capitalized gains. The change in the amortization
of deferred policy acquisition costs during the six months and three months
ended June 30, 1998, was primarily due to a restatement of estimated future
margins on the Closed Block reflected in the second quarter.
Closed Block dividends to policyowners increased by $11.2 million for the
six months and by $11.7 million for the three months ended June 30, 1998. The
increase for both periods was primarily due to the increase in the deferred
dividend liability resulting from increased realized capital gains and lower
death benefits in both periods.
A summary of the Company's policyowner benefits follows:
<TABLE>
For the Six For the Three
Months Ended Months Ended
June 30, June 30,
---------------- ---------------
($ in thousands) 1998 1997 1998 1997
------ ------ ------ ------
<S> <C> <C> <C> <C>
Traditional life insurance
Death benefits $1,040 $699 $643 $197
Change in liability for
future policy benefits
and other policy
benefits 14,288 9,701 8,003 4,490
------- ------- ------ ------
Total traditional life
insurance benefits 15,328 10,400 8,646 4,687
Universal life insurance
Death benefits in excess of
cash value 7,676 10,095 3,016 3,656
Interest credited on policyowner
account balances 17,572 16,685 9,393 8,117
Other policy benefits 2,238 1,622 770 1,029
------- ------- ------- -------
Total universal life
insurance benefits 27,486 28,402 13,179 12,802
Annuities
Interest credited to deferred
annuity account balances 147,313 30,525 71,810 15,125
Other annuity benefits 28,227 17,236 17,924 8,838
-------- ------- -------- -------
Total annuity benefits 175,540 47,761 89,734 23,963
Miscellaneous benefits 932 436 371 26
-------- ------- -------- -------
Total policyowner benefits $219,286 $86,999 $111,930 $41,478
======== ======= ======== =======
</TABLE>
Total policyowner benefits increased by $132.3 million for the six months
and increased by $70.5 million for the three months ended June 30, 1998 from the
same periods in 1997. Included in policyowner benefits were $131.4 million for
the six months and $68.4 million for the three months in the aggregate from
Delta and AmVestors primarily consisting of interest credited to deferred
annuity account balances. Traditional life insurance benefits increased by $4.9
million for the six month period and increased by $3.9 million for the three
month period primarily due to the growth and aging of such business in force.
Universal life insurance benefits decreased by $0.9 million for the six
months ended June 30, 1998 from the same period in 1997 primarily as a result of
decreased death benefits as a result of lower mortality, partially offset by
interest credited on account values.
Annuity benefits increased by $127.8 million for the six months and by
$65.8 million for the three months ended June 30, 1998 from the same periods in
1997. Included in the six month and three month 1998 amounts were $129.5
million and $67.5 million, respectively, of aggregate annuity benefits for Delta
and AmVestors. In the aggregate interest being credited to all annuity
portfolios within the Company has decreased 12 basis points from year end. The
annuity portfolios have increased from $6.1 billion in account value to $6.2
billion at June 30, 1998 from year end. The increase in other annuity benefits
for the six months and three months ended June 30, 1998 from the same periods in
1997 is primarily due to the acquisition of Delta and AmVestors.
<PAGE>
A summary of the Company's expenses follows:
<TABLE>
For the Six For the Three
Months Ended Months Ended
June 30, June 30,
------------------ -----------------
($ in thousands) 1998 1997 1998 1997
------ ------ ------ ------
<S> <C> <C> <C> <C>
Commission expense, net of deferrals $5,587 $4,081 $2,507 $1,968
Other underwriting, acquisition and
insurance expenses, net of
deferrals 32,862 18,357 14,708 9,453
Amortization of deferred policy
acquisition costs on policies
purchased or produced 30,688 10,973 15,750 5,916
------- ------- ------- -------
Total expenses $69,137 $33,411 $32,965 $17,337
======= ======= ======= =======
</TABLE>
Commission expense, net of deferrals increased by $1.5 million for the six
months and by $0.5 million for the three months ended June 30, 1998 compared to
the same periods a year ago. Included in the 1998 amounts were $0.6 million for
the six month period and $0.2 million for the three month period of commission
expense, net of deferrals, in aggregate from Delta and AmVestors. Other
underwriting, acquisition and insurance expenses, net of deferrals, increased by
$14.5 million for the six months and increased by $5.3 million for the three
months ended June 30, 1998, from the same periods in 1997. Included in the
1998 amounts were $13.3 million and $4.8 million for the six month and three
month periods, respectively, of aggregate expenses for Delta and AmVestors.
Contributing to the increase in expenses from the prior year were $1.4 million
of costs related to Year 2000 initiatives.
The amortization of deferred policy acquisition costs on policies purchased
or produced increased by $19.7 million for the six months and increased by $9.8
million for the three months ended June 30, 1998, from the same periods in 1997.
Included in the 1998 amounts were $14.9 million for the six months and $8.2
million for the three months ended June 30, 1998 including amortization of
policies purchased of $14.0 million and $7.3 million for the respective periods,
for Delta and AmVestors combined. Deferred policy acquisition costs are
generally amortized in proportion to gross margins, including realized
capital gains. Increased mortality margins in both the six months and three
months ended June 30, 1998 from the same periods in 1997, on products for
which deferred costs are amortized, contributed to the higher amortizations
in 1998.
Income from operations increased by $25.5 million to $71.5 million and by
$10.4 million to $33.3 million for the six months and three months ended June
30, 1998, respectively, with the acquisitions of Delta and AmVestors accounting
for $24.8 million and $12.6 million for the respective periods in 1998.
Improved product margins, in large part the result of better mortality,
contributed to the remaining increase in income from operations for the first
six months of 1998. The decrease in income from operations for the three months
ended June 30, 1998, exclusive of Delta and AmVestors, is primarily due to
increased expenses and lower net investment income from the same period in 1997.
Interest expense increased by $6.6 million to $12.6 million for the six
months and by $2.9 million to $5.9 million for the three months ended June 30,
1998. The increased interest expense in both periods was primarily due to
increased debt levels resulting from the fourth quarter acquisition of Delta and
AmVestors.
Income before income tax expense and equity in earnings of unconsolidated
subsidiary increased by $18.9 to $58.8 million for the six months and by $7.5
million to $27.3 million for the three months ended June 30, 1998 compared the
same periods in 1997. Included in the 1998 amounts were $24.8 million and $12.6
million for the six months and for the second quarter, respectively, in
aggregate for Delta and AmVestors. The decrease in incomes before income tax
expense and equity in earnings of unconsolidated subsidiary exclusive of Delta
and AmVestors for the six month and three month periods are primarily due to
higher interest expense related to the acquisition of Delta and AmVestors.
Income tax expense increased by $5.7 million to $17.3 million for the six
months and by $1.3 million to $7.1 million for the three months ended June 30,
1998 as compared to the same periods in 1997. The increase in income tax
expense was primarily due to the higher pre-tax income including income from the
recent acquisitions of Delta and AmVestors. The effective tax rate for the six
month period of 1998 was 29.4% compared to 29.0% for the same period in 1997.
The effective tax rate for the second quarter of 1998 was 26.1% compared to
29.5% for the same period in 1997.
Net income increased by $13.6 million to $42.6 million for the six months
and by $6.4 million to $20.8 million for the three months ended June 30, 1998
compared to the same periods in 1997, with the recent acquisitions of Delta and
AmVestors adding $16.3 million and $9.5 million in the 1998 respective periods.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
THE COMPANY
THE COMPANY
The Company's cash flows from operations consist of dividends from
subsidiaries, if declared and paid, interest income on loans and advances to its
subsidiaries (including a surplus note issued to the Company by AmerUs Life),
investment income on assets held by the Company and fees which the Company
charges its subsidiaries and certain other of its affiliates for management
services, offset by the expenses incurred for debt service, salaries and other
expenses.
The Company intends to rely primarily on dividends and interest income from
its life insurance subsidiaries in order to make dividend payments to its
shareholders. The payment of dividends by its life insurance subsidiaries is
regulated under various state laws. Under Iowa law, AmerUs Life and Delta Life
and Annuity Company ("Delta Life") may pay dividends only from the earned
surplus arising from their respective businesses and must receive the prior
approval of the Iowa Commissioner to pay any dividend that would exceed certain
statutory limitations. The current statutory limitation is the greater of (i)
10% of the respective company's policyowners' surplus as of the preceding year
end or (ii) the net gain from operations for the previous calendar year. Iowa
law gives the Iowa Commissioner broad discretion to disapprove requests for
dividends in excess of these limits. Based on this limitation and 1997 results,
AmerUs Life and Delta Life would be able to pay approximately $58 million and $8
million, respectively, in dividends in 1998 without obtaining the Iowa
Commissioner's approval. The payment of dividends by American Investors Life
Insurance Company, Inc. ("American") and Financial Benefit Life Insurance
Company ("FBL") (together "AmVestors' Subsidiaries") is regulated under Kansas
law, which has statutory limitations similar to those in place in Iowa. During
the first six months of 1998, AmerUs Life paid the Company $40 million in
dividends. In July 1998, AmVestors Subsidiaries paid $27.3 million in dividends.
Based upon the cumulative limitations, the Company's subsidiaries could pay an
estimated $26 million in additional dividends in 1998 without obtaining
regulatory approval.
On October 23, 1997, the Company entered into a $250 million revolving
credit facility with a syndicate of lenders (the "Bank Credit Facility") to be
used to replace its then existing revolving credit facility, to finance the
acquisition of Delta, to finance permitted mergers and acquisitions and for
other general corporate purposes. The Bank Credit Facility was secured by a
pledge of approximately 49.9% of the outstanding common stock of AmerUs Life,
100% of the outstanding common stock of Delta and a $50 million 9% surplus note
payable to the Company by AmerUs Life. The Company completed a $125 million
senior note offering in June 1998, of which the proceeds were utilized to pay
down the revolving credit facility. As a result, the commitment under the
facility was reduced to $150 million and all collateral was released. As of
June 30, 1998, there was an outstanding loan balance of $125 million under the
facility. The Bank Credit Facility provides for typical events of default and
covenants with respect to the conduct of the business of the Company and its
subsidiaries and requires the maintenance of various financial levels and
ratios. Among other covenants, the Company (a) cannot have a leverage ratio
greater than 0.35:1.0 or an interest coverage ratio less than 2.5:1.0, (b) is
prohibited from paying cash dividends on its common stock in excess of an amount
equal to 3% of its consolidated net worth as of the last day of the preceding
fiscal year, and (c) must cause certain of its life insurance subsidiaries to
maintain certain ratings from A.M. Best and certain levels of adjusted capital
and surplus and risk-based capital.
The Company may from time to time review other potential acquisition
opportunities. The Company anticipates that funding for any such acquisition may
be provided from available cash resources, from debt or equity financing or
stock-for-stock acquisitions. In the future, the Company anticipates that its
liquidity and capital needs will be met through interest and dividends from its
life insurance subsidiaries, accessing the public equity and debt markets
depending upon market conditions, or alternatively from bank financing.
LIFE INSURANCE SUBSIDIARIES
The cash flows of the Company's life insurance subsidiaries consist
primarily of premium income, deposits to policyowner account balances, income
from investments, sales, maturities and calls of investments and repayments of
investment principal. Cash outflows are primarily related to withdrawals of
policyowner account balances, investment purchases, payment of policy
acquisition costs, payment of policyowner benefits, income taxes and current
operating expenses. Life insurance companies generally produce a positive cash
flow from operations, as measured by the amount by which cash flows are adequate
to meet benefit obligations to policyowners and normal operating expenses as
they are incurred. The remaining cash flow is generally used to increase the
asset base to provide funds to meet the need for future policy benefit payments
and for writing new business.
Management anticipates that funds to meet its short-term and long-term
capital expenditures, cash dividends to shareholders and operating cash needs
will come from existing capital and internally generated funds. Management
believes that the current level of cash and available-for-sale and short-term
securities, combined with expected net cash inflows from operations, maturities
of fixed maturity investments, principal payments on mortgage-backed securities
and its insurance products, will be adequate to meet the anticipated short-term
cash obligations of the Company's life insurance subsidiaries.
The Company and its subsidiaries generated cash flows from operating
activities of $267.8 million and $106.3 million for the six months ended June
30, 1998 and 1997, respectively. Excess operating cash flows were primarily
used to increase the Company's fixed maturity investment portfolio.
Matching the investment portfolio maturities to the cash flow demands of
the type of insurance being provided is an important consideration for each type
of life insurance product and annuity. The Company continuously monitors
benefits and surrenders to provide projections of future cash requirements. As
part of this monitoring process, the Company performs cash flow testing of its
assets and liabilities under various scenarios to evaluate the adequacy of
reserves. In developing its investment strategy, the Company establishes a level
of cash and securities which, combined with expected net cash inflows from
operations, maturities of fixed maturity investments and principal payments on
mortgage-backed securities, are believed adequate to meet anticipated short-term
and long-term benefit and expense payment obligations. There can be no assurance
that future experience regarding benefits and surrenders will be similar to
historic experience since withdrawal and surrender levels are influenced by such
factors as the interest rate environment and the claims-paying and financial
strength ratings of the Company's life insurance subsidiaries.
The Company takes into account asset-liability management considerations in
the product development and design process. Contract terms for the Company's
interest-sensitive products include surrender and withdrawal provisions which
mitigate the risk of losses due to early withdrawals. These provisions generally
do one or more of the following: limit the amount of penalty-free withdrawals,
limit the circumstances under which withdrawals are permitted, or assess a
surrender charge or market value adjustment relating to the underlying assets.
The following table summarizes liabilities for interest-sensitive life
products and annuities by their contractual withdrawal provisions at June 30,
1998 (dollars in millions):
<TABLE>
<S> <C>
Not subject to discretionary withdrawal $365.9
Subject to discretionary withdrawal with adjustments:
Specified surrender charges (A) 3,991.1
Market value adjustments 1,299.2
--------
Subtotal 5,290.3
--------
Subject to discretionary withdrawal without adjustments 1,419.6
--------
Total $7,075.8
========
(A) Includes $1,233.0 million of liabilities with a contractual
surrender charge of less than five percent of the account balance.
</TABLE>
Through its membership in the Federal Home Loan Bank ("FHLB") of Des
Moines, AmerUs Life is eligible to borrow on a line of credit available to
provide it additional liquidity. Interest is payable at a current rate at the
time of any advance. As of June 30, 1998, AmerUs Life had a $25.0 million open
secured line of credit against which there were no borrowings. In addition to
the line of credit, AmerUs Life has long-term advances from the FHLB outstanding
of $16.3 million and short term advances of $9.6 million at June 30, 1998.
The Company's life insurance subsidiaries may also obtain liquidity through
sales of investments or borrowings collateralized by their investment
portfolios. The Company's investment portfolio as of June 30, 1998 had a
carrying value of $9.0 billion, including Closed Block investments. As of June
30, 1998, fixed maturity securities were $7.8 billion, or 86.7% of invested
assets, with public and private fixed maturity securities constituting $7.4
billion, or 94.9%, and $373.7 million, or 5.1%, of total fixed maturity
securities, respectively.
At June 30, 1998, the statutory surplus of AmerUs Life, Delta Life,
American and FBL were approximately $294.4 million, $82.3 million, $116.4
million and $43.6 million, respectively. The Company believes that these
levels of statutory capital are more than adequate as each life insurance
subsidiary's risk-based capital is significantly in excess of required levels.
In the future, in addition to their cash flows from operations and
borrowing capacity, the life insurance subsidiaries would anticipate obtaining
their required capital from the Company as the Company will have access to the
public debt and equity markets.
The Company does not believe that inflation has had a material effect on
its consolidated results of operations.
Interest rate changes may have temporary effects on the sale and
profitability of the annuities and life insurance products offered by the
Company. For example, if interest rates rise, competing investments (such as
annuities or life insurance products offered by the Company's competitors,
certificates of deposit, mutual funds, and similar instruments) may become more
attractive to potential purchasers of the Company's products until the Company
increases the interest rate credited to owners of its annuities and life
insurance products. In contrast, as interest rates fall, the Company attempts
to adjust its credited rates to compensate for the corresponding decline in
reinvestment rates. The Company monitors interest rates and sells annuities and
life insurance policies that permit flexibility to make interest rate changes as
part of its management of interest spreads. However, the profitability of the
Company's products is based upon persistency, mortality and expenses, as well as
interest rate spreads.
The Company manages its investment portfolio in part to reduce its exposure
to interest rate fluctuations. In general, the market value of its fixed
maturity portfolio increases or decreases in an inverse relationship with
fluctuations in interest rates, and net investment income increases or decreases
in a direct relationship with interest rate changes.
The Company has developed an asset/liability management approach with
separate investment portfolios for major product lines such as traditional life,
universal life and annuities. Investment policies and strategies have been
established based on the specific characteristics of each product line. The
portfolio investment policies and strategies establish asset duration, quality
and other guidelines. The Company utilizes analytical systems to establish an
optimal asset mix for each line of business. The Company seeks to manage the
asset/liability mismatch and the associated interest rate risk through active
management of the investment portfolio. Financial, actuarial, investment,
product development and product marketing professionals work together throughout
the product development, introduction and management phases to jointly develop
and implement product features, initial and renewal crediting strategies, and
investment strategies based on extensive modeling of a variety of factors under
a number of interest rate scenarios.
Inforce reserves and the assets allocated to each segment are modeled on a
regular basis to analyze projected cash flows under a variety of economic
scenarios. The result of this modeling is used to modify asset allocation,
investment portfolio duration and convexity and renewal crediting strategies.
The Company invests in CMOs as part of its basic portfolio strategy, but uses
other types of derivatives only as a hedge against the effects of interest rate
fluctuations or to synthetically alter the investment characteristics of
specific assets.
YEAR 2000 COMPLIANCE
As the year 2000 approaches, an important business issue has emerged
regarding how existing application software programs and operating systems can
accommodate the date value "2000." Many existing application software products
were designed to only accommodate a two digit date position which represents the
year (e.g., the number "95" is stored on the system and represents the year
1995). As a result, the year 1999 (i.e., "99") is the maximum date value many
systems will be able to accurately process. The Company formed a year 2000
working group to address potential problems posed by this development to assure
that the Company is prepared for the year 2000. The Company has already made
significant progress in accomplishing the necessary modifications and
conversions to deal with year 2000 issues and anticipates that the majority of
the required efforts will be completed by the end of 1998. Management does not
anticipate that the Company will incur significant operating expenses or be
required to invest heavily in computer system improvements to address year 2000
issues. Total estimated costs are in a range of $4 to $6 million with
approximately $3 million to be incurred in 1998. As of June 30, 1998, the
Company has incurred $1.4 million of such costs. However, if modifications
and conversions to deal with year 2000 issues are not completed on a timely
basis or are not fully effective, such issues may have a material adverse effect
on the operations of the Company. All cost associated with year 2000
modifications and conversions will be expensed as incurred.
<PAGE>
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its annual meeting of its shareholders on May 8, 1998.
There were three matters voted upon at the meeting. The first was the
election of directors. The nominees, Messrs. John R. Albers, Thomas F. Gaffney
and Ralph W. Laster, Jr. and Ms. Ilene B. Jacobs were elected to three-year
terms. Other directors continuing to serve are Roger K. Brooks, Malcolm
Candlish, Maureen M. Culhane, Sam C. Kalainov, John W. Norris, Jr., Jack C.
Pester and John A. Wing.
The second matter was the approval of an amendment to the Company's
Amended and Restated Articles of Incorporation to increase the authorized
number of shares of Class A common stock from 75 million to 180 million.
The third matter voted upon resulted in the ratification of the
appointment of KPMG Peat Marwick LLP as independent auditors for the Company.
The results of the balloting were as follows:
<TABLE>
AGAINST OR ABSTENTIONS
FOR WITHHELD BROKER NON-VOTES
---- --------- ----------------
<S> <C> <C> <C>
Election of Directors:
John R. Albers 31,880,946 397,446
Thomas F. Gaffney 31,885,922 392,470
Ilene B. Jacobs 31,879,383 399,009
Ralph W. Laster, Jr. 31,878,005 400,387
Amendment of Articles
Class A and Class B common stock 27,686,461 4,558,263 33,668
Class A common stock 22,686,461 4,558,263 33,668
Ratification of KPMG Peat
Marwick LLP 32,238,181 31,096 9,115
</TABLE>
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
A list of exhibits included as part of this report is set forth in the
Exhibit Index which immediately precedes such exhibits and is hereby
incorporated by reference herein.
(b) The following report on Form 8-K was filed during the quarter ended
June 30, 1998:
(i) None.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
DATED: August 13, 1998 AMERUS LIFE HOLDINGS, INC.
By /s/ Michael E. Sproule
--------------------------------
Executive Vice President and CFO
(Chief Financial Officer)
By /s/ Michael G. Fraizer
--------------------------------
Senior Vice President -
Controller and Treasurer
(Principal Accounting Officer)
<PAGE>
AMERUS LIFE HOLDINGS, INC. AND SUBSIDIARIES
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ------------------ --------------------
1.1* Underwriting Agreement, dated as of June 16, 1998, among the
Registrant, Salomon Brothers, Inc and Goldman, Sachs & Co. relating to
the Registrant's 6.95% Senior Notes.
2.1 Plan of Reorganization dated October 27, 1995, filed as Exhibit 2.1 to
the registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
2.2 Amended and Restated Agreement and Plan of Merger, dated as of
September 19, 1997 and as amended and restated as of October 8, 1997,
by and among the Registrant, AFC Corp. and AmVestors Financial
Corporation ("AmVestors"), filed as Exhibit 2.2 to the Registration
Statement of the Registrant on Form S-4, Registration Number 333-40065
is hereby incorporated by reference.
2.3 Agreement and Plan of Merger, dated as of August 13, 1997 and as
amended as of September 5, 1997, among the Registrant, a wholly owned
subsidiary of the Registrant and Delta Life Corporation, filed as
Exhibit 2.2 to Form 8-K of the Registrant dated October 8, 1997, is
hereby incorporated by reference.
3.1 Amended and Restated Articles of Incorporation of the Registrant filed
as Exhibit 3.5 to the registration statement of the Registrant on Form
S-1, Registration Number 333-12239, are hereby incorporated by
reference.
3.2 Bylaws of the Registrant, filed as Exhibit 3.2 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
are hereby incorporated by reference.
4.1 Amended and Restated Trust Agreement dated as of February 3, 1997 among
the Registrant, Wilmington Trust Company, as property trustee, and the
administrative trustees named therein (AmerUs Capital I business
trust), filed as Exhibit 3.6 to the registration statement of the
Registrant and AmerUs Capital I on Form S-1, Registration Number
333-13713, is hereby incorporated by reference.
4.2 Indenture dated as of February 3, 1997 between the Registrant and
Wilmington Trust Company relating to the Registrant's 8.85% Junior
Subordinated Debentures, Series A, filed as Exhibit 4.1 to the
registration statement of the Registrant and AmerUs Capital I on Form
S-1, Registration Number, 333-13713, is hereby incorporated by
reference.
4.3 Guaranty Agreement dated as of February 3, 1997 between the Registrant,
as guarantor, and Wilmington Trust Company, as trustee, relating to the
8.85% Capital Securities, Series A, issued by AmerUs Capital I, filed
as Exhibit 4.4 to the registration statement on Form S-1, Registration
Number, 333-13713, is hereby incorporated by reference.
4.4 Common Stock Purchase Warrant, filed as Exhibit (10)(v) to Form 10-Q of
AmVestors Financial Corporation dated May 13, 1992, is hereby
incorporated by reference.
4.5* Amended and Restated Declaration of Trust of AmerUs Capital II, dated
as of July 27, 1998, among the Registrant, First Union Trust Company
and the administrative trustees named therein, relating to the
Registrant's 7.0% ACES Units.
4.6 Certificate of Trust of AmerUs Capital III filed as Exhibit 4.7 to the
registration statement of the Registrant, AmerUs Capital II and AmerUs
Capital III, on Form S-3 (No. 333-50249), is hereby incorporated by
reference.
4.7* Common Trust Securities Guarantee Agreement, dated as of July 27, 1998,
by the Registrant, relating to the Registrant's 7.0% ACES Units.
4.8* QUIPS Guarantee Agreement, dated as of July 27, 1998, by the
Registrant, relating to the Registrant's 7.0% ACES Units.
4.9* Master Unit Agreement, dated as of July 27, 1998, between the
Registrant and First Union National Bank relating to the Registrant's
7.0% ACES Units.
4.10* Call Option Agreement, dated as of July 27, 1998, between Goldman,
Sachs & Co. and First Union National Bank relating to the Registrant's
7.0% ACES Units.
4.11* Pledge Agreement, dated as of July 27, 1998, among the Registrant,
Goldman, Sachs & Co. and First Union National Bank relating to the
Registrant's 7.0% ACES Units.
4.12* Form of Debt Security relating to the Registrant's 6.86% Junior
Subordinated Deferrable Interest Debentures.
4.13 Amended and Restated Intercompany Agreement dated as of December 1,
1996 among American Mutual Holding Company, AmerUs Group Co. and the
Registrant is incorporated herein by reference to Exhibit 10.81 to the
Registrant's Registration Statement on Form S-1 (No. 333-12239).
4.14* Senior Indenture, dated as of June 16, 1998, by and between the
Registrant and First Union National Bank, as Indenture Trustee,
relating to the Registrant's 6.95% Senior Notes.
4.15* Subordinated Indenture, dated as of July 27, 1998, by and between the
Registrant and First Union National Bank, as Indenture Trustee,
relating to the Registrant's 6.86% Junior Subordinated Deferrable
Interest Debentures.
4.16* Form of Debt Security relating to the Registrant's 6.95% Senior Notes.
4.17 Form of 7.0% Adjustable Conversion-rate Equity Security Unit of the
Registrant and AmerUs Capital II (included with Exhibit 4.9).
4.18 Form of 6.86% Quarterly Income Preferred Security (included with
Exhibit 4.5).
10.1 Amended and Restated Intercompany Agreement dated as of December 1,
1996, among American Mutual Holding Company, AmerUs Group Co. and the
Company. Filed as Exhibit 10.81 to the Registrant's registration
statement on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference
10.2 Joint Venture Agreement, dated as of June 30, 1996, between American
Mutual Insurance Company and Ameritas Life Insurance Corp., filed as
Exhibit 10.2 to the Annual Report of the Registrant on Form 10-K, dated
March 25, 1998, is hereby incorporated by reference.
10.3 Management and Administration Service Agreement, dated as of April 1,
1996, among American Mutual Life Insurance Company, Ameritas Variable
Life Insurance Company and Ameritas Life Insurance Corp., filed as
Exhibit 10.3 to the registration statement of the Registrant on Form
S-1, Registration Number 333-12239, is hereby incorporated by reference.
10.4 Agreement and Plan of Merger, dated as of August 24, 1994, among
Central Life Assurance Company and American Mutual Life Insurance
Company, filed as Exhibit 10.4 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.5 All*AmerUs Supplemental Executive Retirement Plan, effective January 1,
1996, filed as Exhibit 10.6 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.6 American Mutual Life Insurance Company Supplemental Pension Plan (which
was curtailed as of December 31, 1995), filed as Exhibit 10.7 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.7 Central Life Assurance Company Supplemental Pension Plan (which was
curtailed as of December 31, 1995), filed as Exhibit 10.8 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.8 Management Incentive Plan, filed as Exhibit 10.9 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
is hereby incorporated by reference.
10.9 AmerUs Life Insurance Company Performance Share Plan, filed as Exhibit
10.10 to the registration statement of the Registrant on Form S-1,
Registration Number 333-12239, is hereby incorporated by reference.
10.10 AmerUs Life Stock Incentive Plan, filed as Exhibit 10.11 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.11 AmerUs Life Non-Employee Director Stock Plan, filed as Exhibit 10.13 to
the registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.12 Modification of Real Estate Contract, dated as of July 1, 1996, between
AmerUs Life Insurance Company and AmerUs Properties, Inc., filed as
Exhibit 10.14 to the registration statement of the Registrant on Form
S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.13 Asset Management and Disposition Agreement, dated January 3, 1995,
between American Mutual Life Insurance Company and Central Properties,
Inc. (now AmerUs Properties, Inc.), filed as Exhibit 10.15 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.14 Form of Indemnification Agreement executed with directors and certain
officers, filed as Exhibit 10.33 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.15 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., filed as Exhibit
10.34 to the registration statement of the Registrant on Form S-1,
Registration Number 333-12239, is hereby incorporated by reference.
10.16 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, filed as Exhibit 10.35 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.17 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., filed as Exhibit 10.36 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.18 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., filed as Exhibit 10.37 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.19 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 Company, filed as Exhibit 10.38 to the registration statement
of the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.20 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, Inc., filed as Exhibit 10.39 to the registration statement
of the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.21 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, filed as
Exhibit 10.40 to the registration statement of the Registrant on Form
S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.22 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., filed as Exhibit 10.41 to the registration statement
of the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.23 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., filed as Exhibit 10.42 to the registration statement
of the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.24 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,
filed as Exhibit 10.43 to the registration statement of the Registrant
on Form S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.25 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, filed as Exhibit 10.44 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.26 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, filed as Exhibit 10.45 to
the registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.27 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, filed as Exhibit 10.46 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
is hereby incorporated by reference.
10.28 Loan Servicing Agreement, dated August 1, 1990, between Central Life
Assurance Company and Midland Financial Mortgages, Inc. (now AmerUs
Mortgage), filed as Exhibit 10.47 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.29 Construction Loan Servicing Agreement, dated November 20, 1995, between
American Mutual Life Insurance Company and AmerUs Properties, Inc.,
filed as Exhibit 10.48 to the registration statement of the Registrant
on Form S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.30 Loan Servicing Agreement, dated September 1, 1994, between Central Life
Assurance Company and Midland Savings Bank, FSB (now AmerUs Bank),
filed as Exhibit 10.50 to the registration statement of the Registrant
on Form S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.31 Amendment to Service Agreement, dated as of May 1, 1996, between
American Mutual Life Insurance Company and AmerUs Bank, filed as
Exhibit 10.52 to the registration statement of the Registrant on Form
S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.32 Data Processing Service Agreement, dated November 1, 1989, between
Central Life Assurance Company and Midland Financial Savings and Loan
Association (now AmerUs Bank), filed as Exhibit 10.53 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.33 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), filed as Exhibit 10.54 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.34 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), filed as Exhibit 10.55 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
is hereby incorporated by reference.
10.35 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), filed as Exhibit 10.56 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.36 Fourth Amendment to Data Processing Service Agreement, dated as of
January 2, 1992, between Central Life Assurance Company and Midland
Savings Bank, (now AmerUs Bank), filed as Exhibit 10.57 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.37 Fifth Amendment to Data Processing Service Agreement, dated as of June
1, 1993, between Central Life Assurance Company and Midland Savings
Bank FSB (now AmerUs Bank), filed as Exhibit 10.58 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
is hereby incorporated by reference.
10.38 Sixth Amendment to Data Processing Service Agreement, dated as of
September 1, 1995, between American Mutual Life Company and AmerUs
Bank, filed as Exhibit 10.59 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.39 Seventh Amendment to Data Processing Service Agreement, dated as of
January 1, 1996, between American Mutual Life Insurance Company and
AmerUs Bank, filed as Exhibit 10.60 to the registration statement of
the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.40 Data Processing Support Services Agreement, dated as of July 1, 1993,
between Central Life Assurance Company and Midland Savings Bank, FSB
(now AmerUs Bank), filed as Exhibit 10.61 to the registration statement
of the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.41 Investment Management Agreement, dated as of August 15, 1992, between
Central Life Assurance Company and Midland Savings Bank FSB (now AmerUs
Bank), filed as Exhibit 10.63 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.42 Purchase Agreement, dated as of June 28, 1996, between AmerUs Life
Insurance Company and AmerUs Bank, filed as Exhibit 10.65 to the
registration statement of the Registrant on Form S-1, Registration
Number 333-12239, is hereby incorporated by reference.
10.43 Brokerage Contract dated January 1, 1995, among American Mutual Life
Insurance Company and Midland Investment Services, Inc. (now AmerUs
Investments, Inc.), filed as Exhibit 10.66 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
is hereby incorporated by reference.
10.44 Servicing Agreement, dated March 1, 1992, between Central Life
Assurance Company and Midland Investment Services, Inc. (now AmerUs
Investments, Inc.), filed as Exhibit 10.67 to the registration
statement of the Registrant on Form S-1, Registration Number 333-12239,
is hereby incorporated by reference.
10.45 Tax Allocation Agreement dated as of November 4, 1996, filed as Exhibit
10.68 to the registration statement of the Registrant on Form S-1,
Registration Number 333-12239, is hereby incorporated by reference.
10.46 Limited Partnership Agreement of Theater Project Limited Partnership
dated March 15, 1985, among Tapp Management, Inc., Tapp Management 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 Assignment 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,
filed as Exhibit 10.73 to the registration statement of the Registrant
on Form S-1, Registration Number 333-12239, is hereby incorporated by
reference.
10.47 Assignment of Limited Partnership Interest of Theater Project Limited
Partnership, dated December 30, 1995, between American Mutual Life
Insurance Company and AmerUs Properties, Inc., filed as Exhibit 10.74
to the registration statement of the Registrant on Form S-1,
Registration Number 333-12239, is hereby incorporated by reference.
10.48 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, filed as Exhibit 10.75 to the registration statement
of the Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.49 Revolving Credit and Term Loan Agreement, dated as of December 1996,
among the Registrant, certain Signatory Banks thereto and The Chase
Manhattan Bank, Note issued by the Registrant and Borrower Pledge
Agreement, filed as Exhibit 10.80 to the registration statement of the
Registrant on Form S-1, Registration Number 333-12239, is hereby
incorporated by reference.
10.50 Agreement and Plan of Merger, dated as of August 13, 1997 and as
amended as of September 5, 1997, among the Registrant, a wholly-owned
subsidiary of the Registrant and Delta Life Corporation, filed as
Exhibit 2.2 to the Registrant's current report on Form 8-K on October
8, 1997, is hereby incorporated by reference.
10.51 Purchase Agreement between AmerUs Life and AmerUs Bank dated March 5,
1997 relating to the sale of certain loans , filed as Exhibit 10.82 to
the registration statement of the Registrant on Form S-4, Registration
Number 333-40065, is incorporated by reference.
10.52 Letter Agreement dated as of March 1, 1997 between AmerUs Life and
AmerUs Mortgage relating to the purchase of residential mortgage loans,
together with an amendment thereto dated March 11, 1997 , filed as
Exhibit 10.83 to the registration statement of the Registrant on Form
S-4, Registration Number 333-40065, is incorporated by reference.
10.53 Credit Agreement, dated as of October 23, 1997, among the Registrant,
Various Lender Institutions, the Co-Arrangers and The Chase Manhattan
Bank, as Administrative Agent , filed as Exhibit 10.84 to the
registration statement of the Registrant on Form S-4, Registration
Number 333-40065, is incorporated by reference.
10.54 Coinsurance Agreement, effective February 1, 1996, between Delta Life
and Annuity Company and London Life Reinsurance Company , filed as
Exhibit 10.85 to the registration statement of the Registrant on Form
S-4, Registration Number 333-40065, is incorporated by reference.
10.55 AmVestors Financial Corporation 1996 Incentive Stock Option Plan, filed
as Exhibit (4)(a) to the registration statement of AmVestors Financial
Corporation on Form S-8, Registration Number 333-14571 dated October
21, 1996, is hereby incorporated by reference.
10.56 1989 Non-Qualified Stock Option Plan adopted March 17, 1989, filed as
Exhibit (10)(q) to Form 10-K of AmVestors Financial Corporation, dated
April 12, 1989, is hereby incorporated by reference.
10.57 Amended and Restated Miscellaneous Service Agreement, dated as of July
21, 1997, among American Mutual Holding Company, Registrant, AmerUs
Life Insurance Company, AmerUs Group Co., AmerUs Bank, AmerUs Mortgage,
Inc., Iowa Realty Co., Inc., Iowa Title Company, AmerUs Insurance,
Inc., AmerUs Properties, Inc., and AmerUs Direct, Inc., filed as
Exhibit 10.57 to the Annual Report of the Registrant on Form 10-K,
dated March 25, 1998, is hereby incorporated by reference.
10.58 Lease - Business Property, dated December 1, 1996, between AmerUs
Properties, Inc. and AmerUs Life Insurance Company, property 611 Fifth
Avenue, Des Moines, Iowa , filed as Exhibit 10.58 to the Annual Report
of the Registrant on Form 10-K, dated March 25, 1998, is hereby
incorporated by reference.
10.59 First Amendment dated February 1, 1998 to Lease Agreement dated
December 1, 1996 between AmerUs Properties, Inc. and AmerUs Life
Insurance Company, property 611 Fifth Avenue, Des Moines, Iowa , filed
as Exhibit 10.59 to the Annual Report of the Registrant on Form 10-K,
dated March 25, 1998, is hereby incorporated by reference.
10.60 Lease - Business Property, dated December 1, 1996, between AmerUs
Properties, Inc. and AmerUs Life Insurance Company, 1213 Cherry Street,
Des Moines, Iowa , filed as Exhibit 10.60 to the Annual Report of the
Registrant on Form 10-K, dated March 25, 1998, is hereby incorporated
by reference.
10.61 Lease - Business Property, dated December 1, 1996, between AmerUs
Properties, Inc. and the Registrant, property 418 Sixth Avenue Moines,
Iowa , filed as Exhibit 10.61 to the Annual Report of the Registrant on
Form 10-K, dated March 25, 1998, is hereby incorporated by reference.
10.62 Lease - Business Property, dated December 31, 1997, between AmerUs
Properties, Inc. and the Registrant property, 699 Walnut Street, Des
Moines, Iowa , filed as Exhibit 10.62 to the Annual Report of the
Registrant on Form 10-K, dated March 25, 1998, is hereby incorporated
by reference.
10.63 First Amendment dated February 1, 1998 to lease dated December 31, 1997
between AmerUs Properties and the Registrant , filed as Exhibit 10.63
to the Annual Report of the Registrant on Form 10-K, dated March 25,
1998, is hereby incorporated by reference.
10.64 Servicing Agreement, dated March 5, 1997, between AmerUs Life Insurance
Company and AmerUs Properties, Inc., filed as Exhibit 10.64 to the
Annual Report of the Registrant on Form 10-K, dated March 25, 1998, is
hereby incorporated by reference.
10.65 First Amended and Restated Articles of Limited Partnership of Cotton
Mill Limited Partnership, dated as of September 30, 1996, among
API-Cotton Mill Partners, L.P., Historic Restoration Incorporated and
AmerUs Management, Inc., filed as Exhibit 10.65 to the Annual Report of
the Registrant on Form 10-K, dated March 25, 1998, is hereby
incorporated by reference.
10.66 Articles of Organization of AmerUs-Blackstone, L.L.C. dated July 8,
1997 , filed as Exhibit 10.66 to the Annual Report of the Registrant on
Form 10-K, dated March 25, 1998, is hereby incorporated by reference.
10.67 First Amended and Restated Articles of Limited Partnership of
Blackstone Hotel Partners L.P. dated as of July 23, 1997 , filed as
Exhibit 10.67 to the Annual Report of the Registrant on Form 10-K,
dated March 25, 1998, is hereby incorporated by reference.
10.68 First Amended and Restated Limited Partnership Agreement of Briggs
Renewal Limited Partnership dated as of November 18, 1997 , filed as
Exhibit 10.68 to the Annual Report of the Registrant on Form 10-K,
dated March 25, 1998, is hereby incorporated by reference.
10.69 Declaration of Operating Agreement of AmerUs-Blackstone, L.L.C., dated
as of July 23, 1997, filed as Exhibit 10.69 to the Annual Report of the
Registrant on Form 10-K, dated March 25, 1998, is hereby incorporated
by reference.
10.70 Open Line of Credit Application and Terms Agreement, dated March 3,
1997, between Federal Home Loan Bank of Des Moines and AmerUs Life
Insurance Company , filed as Exhibit 10.70 to the Annual Report of the
Registrant on Form 10-K, dated March 25, 1998, is hereby incorporated
by reference.
10.71 Certificate of Limited Partnership Agreement of API Cottonmill Partner,
L.P., dated as of June 21, 1996, among AmerUs Management, Inc. and
AmerUs Properties, Inc., filed as Exhibit 10.71 to the Annual Report of
the Registrant on Form 10-K, dated March 25, 1998, is hereby
incorporated by reference.
11 Computation of Earnings per Share
27 Financial Data Schedule
99.3 Employment Agreement, dated as of September 19, 1997, among Mark V.
Heitz, AmVestors Financial Corporation, American Investors Life
Insurance Company, Inc., AmVestors Investment Group, Inc. and American
Investors Sales Group, Inc., filed as Exhibit 99.3 to the registration
statement of the Registrant on Form S-4, Registration Number 333-40065,
is incorporated by reference.
99.4 Agreement of Sale, dated as of October 22, 1997, by and between R. Rex
Lee and AmerUs Group, Co., filed as Exhibit 99.4 to the registration
statement of the Registrant on Form S-4, Registration Number 333-40065,
is incorporated by reference.
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable, and therefore
have been omitted.
- --------------------------
* Filed herewith
<PAGE>
<PAGE>
Exhibit 1.1
AmerUs Life Holdings, Inc.
Debt Securities
-----------------------
Underwriting Agreement
June 11, 1998
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time AmerUs Life Holdings, Inc., an Iowa corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). The Company 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 on
June 30, 1996. The Company is the sole shareholder of AmerUs Life Insurance
Company, an Iowa stock life insurance company ("AmerUs Life"), which is the
successor company of American Mutual. 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. On October 23, 1997, the Company acquired
Delta Life Corporation ("Delta") and on December 19, 1997, the Company acquired
AmVestors Financial Corporation ("AmVestors"). The acquisition of Delta and the
acquisition of AmVestors are hereinafter referred to as the "Acquisition".
Following the offering of the Designated Securities, and subject to
obtaining the approval of the Iowa Insurance Commissioner, the Company intends
to offer up to $150 million of its unit securities, consisting of the Company's
subordinated debt securities and a contract to purchase shares of Class A Common
Stock, no par value ("Class A Common Stock") of the Company. Such unit
securities are hereinafter referred to as the "Units" and the offering of the
Units is hereinafter referred to as the "Units Offering". The consummation of
the offering of the Designated Securities and the Units Offering are not
conditioned on one another.
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of facsimile communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-50249) (the
"Initial Registration Statement") in respect of the Securities and the
Units 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 or to be delivered
to the Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives 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 or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); 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) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective but excluding Form T-1, each as amended at the
time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will 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 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 Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, 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 "Trust
Indenture Act") 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 Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference 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 Company or any of its 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 Company or any of its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company and its 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 the Company and its
subsidiaries, taken as a whole, and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company and its
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
Company and its subsidiaries;
(f) The Company 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 Company 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 Company and its subsidiaries
has the 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;
(g) Each of the Company and the Company'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 Company (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, individually or in
the aggregate, 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 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;
(h) 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 securi-
ties laws other than those of the State of Iowa), in connection with the
issuance and sale of the Designated Securities or the Units, in each case
with the exception of the approval of the Iowa Insurance Commissioner (the
"Commissioner") in connection with the Units Offering under Section 46.10
of Division 191 under the Iowa Administrative Code ("191 IAC 46.10" or the
"191 IAC 46.10 Exception")) and with such other exceptions (other than the
insurance laws and regulations of the State of Iowa, as to which no
exception, other than the 191 IAC 46.10 Exception, is taken), individually
or in the aggregate, as would not affect the validity of the Designated
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 Designated Securities or the Units, in each
case with the exception of the approval of the Commission in connection
with the Units Offering under 191 IAC 46.10 and with such other exceptions
(other than the insurance laws of the State of Iowa, as to which no
exception, other than the 191 IAC 46.10 Exception, is taken), individually
or in the aggregate, as would not affect the validity of the Designated
Securities or the Units, their issuance or the transactions contemplated
hereby or have a Material Adverse Effect;
(i) The Company and its subsidiaries previously filed all Notices
required to be filed pursuant to, and previously obtained all Approvals
required to be obtained under, and have otherwise complied with all
requirements of, all applicable insurance laws and regulations in
connection with the Acquisition, in each case (other than the insurance
laws and regulations of the State of Iowa, in the case of the acquisition
of Delta, and other than the laws and regulations of the State of Kansas
and the State of Iowa, in the case of the acquisition of AmVestors, as to
which no exception is taken in either case) with such exceptions as (i)
would not have a Material Adverse Effect and (ii) would not affect the
validity, performance or consummation of the Acquisition;
(j) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and except as disclosed in the Prospectus
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(k) The Securities and the Units have been duly authorized by the
Company and the AmerUs Capital Trust II, as applicable, and, when
Designated Securities are issued and delivered pursuant to this Agreement,
the Indenture and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(l) Except as disclosed in the Prospectus with resepct to the Units,
the issue and sale of the Securities and the Units by the Company, the
compliance by the Company with all of the provisions of the Securities and
the Indenture, the compliance by the Company with this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not 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 Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or other organizational documents or bylaws
of the Company or any of its subsidiaries, any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification (each, a "Consent") of or with any such court or governmental
agency or body is required for the issue and sale of the Securities and the
Units or the consummation by the Company of the transactions contemplated
by this Agreement or any Pricing Agreement or the consummation by the
Company of the transactions contemplated by the Indenture, except (i) the
registration under the Act of the Securities; (ii) such as have been, or
will have been prior to the Time of Delivery, obtained under the Trust
Indenture Act; (iii) approvals required under the Iowa insurance laws and
regulations, all of which approvals, with the exception of the approval of
the Commission in connection with the Units Offering under 191 IAC 46.10,
have been obtained; (iv) 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 Securities by the Underwriters; and
(v) except as disclosed in the Prospectus;
(m) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and
under the caption "Risk Factors Regulatory and Related Risks"; " Risks
Relating to the Closed Block"; "Reorganization and Recent Acquisitions";
"Plan of Distribution" and "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(n) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or other organizational documents or bylaws or
(ii) 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;
(o) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect on the Company and its subsidiaries taken as
a whole; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(p) Neither the Company nor any of its subsidiaries is and, after
giving effect to the offering and sale of the 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");
(q) Neither the Company nor any of its 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;
(r) KPMG Peat Marwick L.L.P., who have certified certain financial
statements of the Company and its subsidiaries, Coopers & Lybrand, L.L.P.,
who have certified certain financial statements of Delta and its
subsidiaries, and Deloitte & Touche, L.L.P., who have certified certain
financial statements of AmVestors and its subsidiaries, are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(s) This Agreement and the Pricing Agreement applicable to any
Designated Securities have each been duly authorized, executed and
delivered by the Company.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. (a) Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor to the Company
in funds specified in such Pricing Agreement, all in the manner and at the place
and time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
(b) The documents to be delivered at the Time of Delivery for the
Designated Securities specified in the applicable Pricing Agreement by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Designated Securities specified in the applicable Pricing
Agreement and any additional documents requested by the Underwriters pursuant to
Section 7(j) hereof, will be delivered at the offices of Sullivan & Cromwell,
125 Broad Street, New York, New York 10004 (the "Closing Location"), and the
Designated Securities will be delivered at the Closing Location, all at such
Time of Delivery. A meeting will be held at the Closing Location at 2:30 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 Agreement "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. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives 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 the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Designated Securities and prior to the Time of
Delivery for such Designated Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same period
to advise the Representatives, 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 with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of such 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 amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives 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 such Securities,
provided that in connection therewith the Company shall not 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 as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the 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 same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives 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;
(d) 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 Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of Salomon Brothers Inc and Goldman, Sachs & Co.;
(f) If the Company elects to rely upon Rule 462(b), the Company shall
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 Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish Salomon Brothers Inc and to Goldman,
Sachs & Co. copies of all reports or other communications (financial or
other) furnished to shareholders, and deliver to Salomon Brothers Inc and
Goldman, Sachs & Co. (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
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as the Underwriters may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Designated Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds"; and
(i) Not to invest, reinvest or otherwise use the proceeds received by
the Company in such a manner, or take any action, or omit to take any
action, that would cause the Company to become an "investment company" as
that term is defined in the Investment Company Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (a) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the 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; (b) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Designated Securities; (c) all
expenses in connection with the qualification of the 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; (d) all fees and expenses in connection with listing the
Securities on a national securities exchange; (e) any fees charged by securities
rating services for rating the Securities; (f) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (g) the cost of preparing the
Securities; (h) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; and (i) all other costs and expenses
incident to the performance of the Company's 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 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities 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 Company 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 the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the Company,
this Agreement, the validity of the Designated Securities being delivered at
such time of delivery, the Registration Statement, the Prospectus and such other
related matters as the Representatives 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) Counsel for the Company satisfactory to the Representatives shall have
furnished to the Representatives their written opinion (a draft of such opinion
is attached as Annex II(b) hereto), dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Iowa,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Company 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 as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; 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 and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Designated Securities and the Units have been duly
authorized; the Designated Securities have been duly executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture and enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles (whether such principles are
considered in a proceeding in equity or in law); and the Designated
Securities and the Indenture conform to the descriptions thereof in
the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the parties thereto and, assuming due authorization, execution and
delivery by the Trustee, constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (whether such principles are considered in a
proceeding in equity or in law); and the Indenture has been duly
qualified under the Trust Indenture Act;
(vii) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities", and
"Description of Notes" insofar as they purport to constitute a summary
of the terms of the Designated Securities, and under the captions
"Risk Factors Regulatory and Related Risks"; " Risks Relating to
the Closed Block"; "Reorganization and Recent Acquisitions"; "Plan of
Distribution" 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;
(viii) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act;
(ix) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, 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, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(x) The Registration Statement, the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (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 Trust Indenture 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 Company prior
to the 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 as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the 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 the Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements 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 any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
In rendering such opinion, such counsel may state that insofar as
their opinion under clause (x) 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 Company, AmerUs Life, Delta and AmVestors, 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 Company, AmerUs Life, Delta or AmVestors 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 the Representatives otherwise.
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
Company, Delta, AmVestors or AmerUs Life.
Any opinion or statement expressed or made pursuant to this Section
7(c) which is expressed or made to be "to our knowledge" or is otherwise
qualified by words of like import means that the lawyers in the firm of
such counsel who have served as counsel to the Company, AmerUs Group, AMHC,
AmerUs Life (or, at any time prior to the date AmerUs Life was formed,
American Mutual) or any other subsidiary of the Company have no current
conscious awareness of any facts or information contrary to such opinion or
statement.
(d) Joseph K. Haggerty, Esq., Senior Vice President and General Counsel of
the Company, shall have furnished to you his written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory to
you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Iowa,
AmerUs Life and Delta have each been duly incorporated and are validly
existing as a stock life insurance company in good standing under the
laws of the State of Iowa, and American Investors Life Insurance
Company ("American") and Financial Benefit Life Insurance Company
("FBL") have each been duly incorporated and are validly existing as
stock insurance companies in good standing under the laws of the State
of Kansas, each with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) Each of the Company and its subsidiaries not listed in paragraph
7(d)(i) 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 Company or any of its subsidiaries, provided that such
counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(iv) Each of the Company's subsidiaries not listed in
paragraph 7(d)(i) 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 subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable, and, except as
disclosed in the Prospectus, are owned directly or indirectly by the
Company, 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 respect to matters of
fact upon certificates of officers of the Company or any of its
subsidiaries, provided that such counsel shall state that he believes
that both you and he are justified in relying upon such opinions and
certificates);
(v) The Company and its 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 as amended or supplemented or such as do
not materially affect the value of the Company and its subsidiaries,
taken as a whole, and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and
its 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 Company and its 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
he is relying upon a general review of the titles of the Company and
its 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 Company
or its subsidiaries, upon opinions of counsel to the lessors of such
property and, in respect to matters of fact, upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that he believes that both you and he are
justified in relying upon such opinions, abstracts, reports, policies
and certificates);
(vi) Except as disclosed in the Prospectus with respect to the Units,
the issue and sale of the Designated Securities and the Units by the
Company, the compliance by the Company with all of the provisions of
the Designated Securities and the Indenture, the compliance by the
Company with this Agreement and the Pricing Agreement with respect to
the Designated Securities, and the consummation of the transactions
herein and therein contemplated will not 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 Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company 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 Company or any of its subsidiaries or any of
their properties except that in order to commence the Units Offering,
the Company must obtain the approval of the Commissioner under 191 IAC
46.10;
(vii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus as amended or supplemented, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(viii) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
(ix) The Company and its subsidiaries previously filed all Notices
required to be filed pursuant to, and previously obtained all
Approvals required to be obtained under, and have otherwise complied
with all requirements of, all applicable insurance laws and
regulations in connection with the Acquisition, in each case (other
than the insurance laws and regulations of the State of Iowa, in the
case of the acquisition of Delta, and other than the laws and
regulations of the State of Kansas, in the case of the acquisition of
AmVestors, as to which no exception is taken in either case) with such
exceptions as (i) would not have a Material Adverse Effect and (ii)
would not affect the validity, performance or consummation of the
Acquisition;
(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 as amended or supplemented, 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 as
amended or supplemented and except pursuant to the approval of the
Commission in connection with the Units Offering under 191 IAC 46.10,
no Insurance Company has received any notification from any insurance
regulatory authority to the effect that any additional Approvals from
such insurance regulatory authority are 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 Designated
Securities and the Units, in each case with the exception of the
approval of the Commission in connection with the Units Offering under
191 IAC 46.10 and such other exceptions (other than the insurance laws
of the State of Iowa, as to which no exception, other than the 191 IAC
46.10 Exception, is taken), individually or in the aggregate, as would
not affect the validity of the Designated 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 Designated Securities or the Units, in each
case with the exception of the approval of the Commission in
connection with the Units Offering under 191 IAC 46.10 and such other
exceptions (other than the insurance laws and regulations of the State
of Iowa, as to which no exception, other than the 191 IAC 46.10
Exception, is taken), individually or in the aggregate, as would not
affect the validity of the Designated Securities, their issuance or
the transactions contemplated hereby or have a Material Adverse
Effect;
(xii) No Consent of or with any court or governmental agency or body
having jurisdiction over the Company, any of its subsidiaries or any
of their properties is required for the issue and sale of the
Designated Securities or the Units or the consummation by the Company
of the transactions contemplated by this Agreement or the Pricing
Agreement or the consummation by the Company of the transactions
contemplated by the Indenture, except (i) the registration under the
Act of the Designated Securities, (ii) such as have been obtained
under the Trust Indenture Act, (iii) such Consents as may be required
under state securities, insurance securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities or the Units by the Underwriters and (iv) approvals
required under the Iowa insurance laws and regulations, all of which
approvals, with the exception of the approval of the Commission in
connection with the Units Offering under 191 IAC 46.10, have been
obtained;
(xiii) Neither the Company nor any of its subsidiaries is in violation
of its charter or other organizational documents or bylaws or 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;
(xiv) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of the Debt Securities"
and "Description of the Notes"; "Risk Factors Regulatory and Related
Risks"; " Risks Relating to the Closed Block"; "Reorganization and
Recent Acquisitions"; "Plan of Distribution" and "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein; are in each case accurate, complete and
fair in all material respects; and
(xv) Although he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus as amended or supplemented,
except for those referred to in the opinion in subsection (xiv) of
this Section 7(d), he has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company 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 their respective
dates, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company 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, any of the
Registration Statement and the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
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 as amended or supplemented
which are not filed or described as required.
In rendering such opinion, such counsel may state that insofar as his
opinion under clause (xv) 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
Company 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 Company or AmerUs Life
and of state officials, in which case his opinion is to state that he is 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 the
Representatives otherwise.
(e) On the date of the Pricing Agreement for such Designated Securities at
a time prior to the execution of the Pricing Agreement with respect to such
Designated Securities and at the Time of Delivery for such Designated
Securities, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives (the executed copy
of the letter delivered prior to the execution of this Agreement is attached as
Annex III hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration Statement and
as of each Time of Delivery is attached as Annex IV hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities 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
as amended prior to the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information is given
in the Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Securities there shall not have been any change in the capital
stock or long-term debt of the Company or any of its 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 Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities, 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
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded AmerUs Life's, Delta Life and Annuity Company's ("Delta Life"),
American or FBL's financial strength or claims paying ability by A.M. Best or by
any "nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act (a
"Rating Organization"); and (ii) no such Rating Organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of AmerUs Life's, Delta Life's, American's or FBL's
financial strength or claims paying ability; and (iii) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
or the Company's financial strength or claims paying ability by any Rating
Organization, and (iv) no Rating Organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock or the
Company's financial strength or claims paying ability;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities 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 on the National Association of Securities Dealers
Automated Quotations National Market ("NASDAQ"); (ii) a suspension or material
limitation in trading in the Company's securities on NASDAQ; (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
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the respective representations and
warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company 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 (f) of this Section and as to such other matters as the Representatives
may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter 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, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, 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 each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; PROVIDED, HOWEVER, that the
Company shall not 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, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company 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, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, 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, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company 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 the indemnifying
party under such subsection, notify the 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 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 Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated 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 Company on the one hand and the Underwriters of the Designated
Securities 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 Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
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 Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company 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 (even if
the Underwriters were treated as one entity for such purpose) or by any other
method 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), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has 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. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter 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 respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed periods, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several 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 any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity agreement of
the Company in subsection (a) of Section 8 hereof, the representations and
warranties in subsections (b) and (c) of Section 2 hereof and any representation
or warranty as to the accuracy of the Registration Statement or the Prospectus
contained in any certificate furnished by the Company pursuant to Section 7
hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company 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 partner of an Underwriter who is a director, officer or controlling person of
the Company 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 Company the matter has
been settled by controlling precedent, the Company 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.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
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 the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' questionnaire, or telex constituting such
questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing 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.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
AmerUs Life Holdings, Inc.
By: /s/ Roger K. Brooks
------------------------------------
Name: Roger K. Brooks
Title: Chairman, President and
Chief Executive Officer
<PAGE>
Pricing Agreement
Salomon Brothers Inc
Goldman, Sachs & Co.,
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Salomon Brothers Inc,
388 Greenwich Street,
New York, New York 10013.
June 11, 1998
Ladies and Gentlemen:
AmerUs Life Holdings, Inc., an Iowa corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated June 11, 1998 (the "Underwriting Agreement"), to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters, on the one hand, and the Company and AmerUs Life Insurance
Company, on the other hand. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
AmerUs Life Holdings, Inc.
By: /s/ Roger K. Brooks
-------------------------------
Name: Roger K. Brooks
Title: Chairman, President and
Chief Executive Officer
Accepted as of the date hereof:
Salomon Brothers Inc
Goldman, Sachs & Co.
Chase Securities Inc.
Credit Suisse First Boston Corporation
Salomon Brothers Inc
By: /s/ Tim Devine
-------------------------------------------------------------------
Name: Tim Devine
Title: Associate
---------------------------------------
On behalf of each of the Underwriters
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ----------
Salomon Brothers Inc$ 43,750,000
Goldman, Sachs & Co. 43,750,000
Chase Securities Inc 18,750,000
Credit Suisse First Boston Corporation 18,750,000
----------
Total $125,000,000
==========
<PAGE>
SCHEDULE II
Title of Designated Securities:
6.95% Senior Notes due 2005
Aggregate principal amount:
$125,000,000
Price to Public:
99.880% of the principal amount of the Designated Securities, plus accrued
interest, if any,
from June 16, 1998
Purchase Price by Underwriters:
99.255% of the principal amount of the Designated Securities, plus accrued
interest, if any, from June 16, 1998
Form of Designated Securities:
Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.
Specified funds for payment of purchase price:
Wire transfer of Federal (same day) funds
Time of Delivery:
9:30 a.m. (New York City time), June 16, 1998
Indenture:
Indenture dated June 16, 1998, between the Company and First Union National
Bank, as Trustee
Maturity:
June 15, 2005
Interest Rate:
6.950%
Interest Payment Dates:
June 15 and December 15, commencing December 15, 1998
Redemption Provisions:
No provisions for redemption
Sinking Fund Provisions:
No sinking fund provisions
Defeasance provisions:
The provisions of the Indenture relating to defeasance set forth in Article
IV thereof apply to the Designated Securities.
Closing location for delivery of Designated Securities:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Names and addresses of Representatives:
Designated Representatives:
Salomon Brothers Inc
Goldman, Sachs & Co.
Address for Notices, etc.:
c/o Salomon Brothers Inc
388 Greenwich Street
New York, New York 10013
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company 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 audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, 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 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 Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives") such term to include
an Underwriter or Underwriters who act without any firm being designated as its
or their representatives and are attached hereto;
(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 and/or included in the
Company's quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which are attached
hereto; and on the basis of specified procedures including inquiries of
officials of the Company 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
Exchange Act and the related published rules and regulations, nothing came to
their attention that caused 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 Exchange
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 Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such 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 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 Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company 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 condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange 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 or included in the Company's Quarterly Reports
on Form 10-Q incorporated by reference 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 or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the 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 financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference 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 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 balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference 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 or incorporated by reference 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 Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference 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 audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
Exhibit 4.5
=============================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
among
AMERUS LIFE HOLDINGS, INC., as Sponsor,
FIRST UNION NATIONAL BANK,
as Property Trustee,
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
as Delaware Trustee,
and
THE ADMINISTRATORS NAMED HEREIN
Dated as of July 27, 1998
AMERUS CAPITAL II
==============================================================================
<PAGE>
AMENDED AND RESTATED DECLARATION
OF TRUST
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS. ..1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II
TRUST INDENTURE ACT. . . . . . . .9
Section 2.1. Trust Indenture Act; Application . . . . . . . . . . . . . . . . .9
Section 2.2. Lists of Holders of Securities . . . . . . . . . . . . . . . . . .9
Section 2.3. Reports by the Property Trustee. . . . . . . . . . . . . . . . . 10
Section 2.4. Periodic Reports to Property Trustee . . . . . . . . . . . . . . 10
Section 2.5. Evidence of Compliance with Conditions Precedent . . . . . . . . 10
Section 2.6. Events of Default; Waiver. . . . . . . . . . . . . . . . . . . . 10
Section 2.7. Event of Default; Notice . . . . . . . . . . . . . . . . . . . . 12
ARTICLE III
ORGANIZATION . . . . . . . . . . 13
Section 3.1. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.2. Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.3. Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.4. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.5. Title to Property of the Trust . . . . . . . . . . . . . . . . . 14
Section 3.6. Powers and Duties of the Administrators. . . . . . . . . . . . . 14
Section 3.7. Prohibition of Actions by the Trust, the Administrators and the
Trustees . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 3.8. Powers and Duties of the Property Trustee. . . . . . . . . . . . 18
Section 3.9. Certain Duties and Responsibilities of the Property Trustee. . . 20
Section 3.10 Certain Rights of the Property Trustee. . . . . . . . . . . . . 22
Section 3.11 Delaware Trustee. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.12 Execution of Documents. . . . . . . . . . . . . . . . . . . . . 25
Section 3.13. Not Responsible for Recitals or Issuance of Securities. . . . . 25
Section 3.14. Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.15. Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SPONSOR. . . . . . . . . . . . . 27
Section 4.1. Sponsor's Purchase of Common Trust Securities. . . . . . . . . . 27
Section 4.2. Responsibilities of the Sponsor. . . . . . . . . . . . . . . . . 27
Section 4.3. Right to Proceed . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V
TRUSTEES AND ADMINISTRATORS . . . 28
Section 5.1. Number of Trustees: Appointment of Co-Trustee. . . . . . . . . . 28
Section 5.2. Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.3. Property Trustee; Eligibility. . . . . . . . . . . . . . . . . . 29
Section 5.4. Certain Qualifications of Administrators and Delaware
Trustee Generally . . . . . . . . . . . . . . . . . . . . . 30
Section 5.5. Administrators . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.6. Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.7. Appointment, Removal and Resignation of Trustees . . . . . . . . 31
Section 5.8. Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . 33
Section 5.9. Effect of Vacancies. . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.10. Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.11. Delegation of Power . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.12. Merger, Conversion, Consolidation or Succession to Business . . 34
ARTICLE VI
DISTRIBUTIONS. . . . . . . . 34
Section 6.1. Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VII
ISSUANCE OF SECURITIES . . . . . 34
Section 7.1. General Provisions Regarding Securities. . . . . . . . . . . . . 34
Section 7.2. Execution and Authentication . . . . . . . . . . . . . . . . . . 35
Section 7.3. Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 7.4. Registrar, Paying Agent and Exchange Agent . . . . . . . . . . . 37
Section 7.5. Paying Agent to Hold Money in Trust. . . . . . . . . . . . . . . 37
Section 7.6. Replacement Securities . . . . . . . . . . . . . . . . . . . . . 38
Section 7.7. Outstanding QUIPS. . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.8. QUIPS in Treasury. . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.9. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.10. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.11. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VIII
DISSOLUTION OF TRUST. . . . . . 40
Section 8.1. Dissolution of Trust . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IX
TRANSFER OF INTERESTS. . . . . . 41
Section 9.1. Transfer of Securities . . . . . . . . . . . . . . . . . . . . . 41
Section 9.2. Transfer Procedures and Restrictions . . . . . . . . . . . . . . 41
Section 9.3. Deemed Security Holders. . . . . . . . . . . . . . . . . . . . . 45
Section 9.4. Book Entry Interests . . . . . . . . . . . . . . . . . . . . . . 45
Section 9.5. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . 45
Section 9.6. Appointment of Successor Clearing Agency . . . . . . . . . . . . 45
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES,ADMINISTRATORS OR
OTHERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.1. Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.2. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.3. Fiduciary Duty. . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 10.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.5. Outside Businesses. . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE XI
ACCOUNTING . . . . . . . . . . . 51
Section 11.1. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.2. Certain Accounting Matters. . . . . . . . . . . . . . . . . . . 51
Section 11.3. Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 11.4. Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XII
AMENDMENTS AND MEETINGS. . . . . 52
Section 12.1. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 12.2. Meetings of the Holders; Action by Written Consent. . . . . . . 54
<PAGE>
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE. . . . . . . . . . . . . . . 56
Section 13.1. Representations and Warranties of Property Trustee. . . . . . . 56
Section 13.2. Representations and Warranties of Delaware Trustee. . . . . . . 56
ARTICLE XIV
MISCELLANEOUS. . . . . . . . . . 57
Section 14.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 14.2. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 14.3. Intention of the Parties. . . . . . . . . . . . . . . . . . . . 58
Section 14.4. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 14.5. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . 59
Section 14.6. Partial Enforceability. . . . . . . . . . . . . . . . . . . . . 59
Section 14.7. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 59
<PAGE>
Annex I - Terms of Securities
Exhibit A-1 - Form of Quarterly Income Preferred Security
Exhibit A-2 - Form of Common Trust Security
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
OF
AMERUS CAPITAL II
July 27, 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of July 27, 1998, by the Trustees (as defined herein), the Sponsor
(as defined herein), the Administrators (as defined herein) and by the holders,
from time to time, of undivided beneficial interests in the assets of the Trust
to be issued pursuant to this Declaration;
WHEREAS, AmerUs Capital II (the "Trust") has been established as a
trust created under the Business Trust Act (as defined herein) pursuant to a
Trust Agreement dated as of April 14, 1998 (the "Original Declaration") and a
Certificate of Trust executed and filed with the Secretary of State of the State
of Delaware on April 14, 1998, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer (each as hereinafter defined);
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires;
(f) a term defined in the Indenture (as defined herein) or the Master
Unit Agreement (as defined herein) has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or the context
otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Administrators" means each of Michael E. Sproule, Michael G. Fraizer
and James A. Smallenberger solely in such Person's capacity as Administrator of
the Trust created and continued hereunder and not in such Person's individual
capacity, or such Administrator's successor in interest in such capacity, or any
successor appointed as herein provided.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Exchange Agent.
"Authorized Officer" of a Person means any other Person that is
authorized to legally bind such former Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of such Person in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for all or
any substantial part of its property, or ordering the winding-up or
liquidation of its affairs and such decree or order shall remain unstayed
and in effect for a period of 90 consecutive days; or
(b) such Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking of
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of such Person of all or any
substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due.
"Book Entry Interest" means a beneficial interest in a Global Security
registered in the name of a Clearing Agency or its nominee, ownership and
transfers of which shall be maintained and made through book entries by a
Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday or a Sunday or a
day on which banking institutions in The City of New York or Charlotte, North
Carolina are authorized or required by law or executive order to close.
"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,
or any successor legislation.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the QUIPS and in whose name or in the name of a nominee of that organization
shall be registered a Global Security and which shall undertake to effect
book-entry transfers and pledges of the QUIPS.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Time" means the "First Time of Delivery" under the
Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the United States Securities and Exchange
Commission as from time to time constituted, or if any time after the execution
of this Declaration such Commission is not existing and performing the duties
now assigned to it under applicable federal securities laws, then the body
performing such duties at such time.
"Common Trust Securities" has the meaning specified in Section 7.1(a).
"Common Trust Securities Guarantee" means the guarantee agreement
dated as of the date hereof of the Sponsor in respect of the Common Trust
Securities.
"Common Trust Securities Subscription Agreement" means the Common
Trust Securities Subscription Agreement, dated as of the date hereof, by and
between the Debenture Issuer and the Trust.
"Company Indemnified Person" means (a) any Administrator; (b) any
Affiliate of any Administrator; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrator; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee at
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at First Union National Bank Corporate
Trust Group, 230 South Tyson St., Charlotte, North Carolina 28288-1179.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means AmerUs Life Holdings, Inc., an Iowa
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debenture Subscription Agreement" means the Debenture Subscription
Agreement, dated as of the date hereof, by and between the Debenture Issuer and
the Trust.
"Debenture Trustee" means First Union National Bank, a national
banking association, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the 6.86% Junior Subordinated Deferrable Interest
Debentures due July 27, 2003 of the Debenture Issuer issued pursuant to the
Indenture.
"Default" means an event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Definitive QUIPS" shall have the meaning set forth in Section 7.3(d).
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direct Action" shall have the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders in accordance
with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Final Redemption Price" has the meaning set forth in Section 4 of
Annex I hereto.
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Security" has the meaning set forth in Section 7.3(b).
"Holder" means a Person in whose name a Security is registered, such
Person being a beneficial owner within the meaning of the Business Trust Act,
PROVIDED, HOWEVER, that with respect to any QUIPS that underlie Normal Units,
the Holder (as defined in the Master Unit Agreement and as notified to the
Property Trustee by or on behalf of the Unit Agent) of such Normal Units shall
be deemed to be the Holder of such QUIPS for all purposes under the Declaration
and the Indenture other than for receipt of Distributions on, or other payments
to be made in respect of, such QUIPS (including the distribution of Debentures
in connection with a Dissolution Event or the exercise of a Put Option). The
Property Trustee shall from time to time request from the Unit Agent a copy of
the Unit Register for the Normal Units as shall be necessary to give effect to
the foregoing.
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of the date hereof, between
the Debenture Issuer and the Debenture Trustee, providing for the issuance of
subordinated debt securities in series, as amended from time to time.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(f).
"Like Amount" has the meaning set forth in Section 3 of Annex I
hereto.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in liquidation amount" means, with respect to the Trust
Securities, except as provided in the terms of the QUIPS or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding QUIPS or
Holders of outstanding Common Trust Securities voting separately as a class, who
are the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Master Unit Agreement" shall mean the Master Unit Agreement between
AmerUs Life Holdings, Inc. and First Union National Bank, as Unit Agent, dated
as of the date hereof.
"Officers' Certificate" means, (i) with respect to any Person other
than the Trust, a certificate signed by two of the following: the Chairman, a
Vice Chairman, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice President (whether or not designated by a number or a word or
words added before or after such title), the Comptroller, or the Secretary or an
Assistant Secretary of such Person and (ii) with respect to the Trust, a
certificate signed by not less than two administrators. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(i) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(iii) 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
(iv) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of the Sponsor, and who shall be acceptable to the Property
Trustee.
"Participants" shall have the meaning set forth in Section 7.3(c).
"Paying Agent" has the meaning specified in Section 7.4.
"Payment Amount" has the meaning set forth in Section 6.1.
"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.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
"Quorum" means a majority of the Administrators or, if there are only
two Administrators, both of them.
"QUIPS-SM-(1)" has the meaning specified in Section 7.1(a).
"QUIPS Guarantee" means the guarantee agreement of the Sponsor dated
as of the date hereof in respect of the QUIPS.
"QUIPS Beneficial Owner" means, with respect to a Book Entry Interest,
a Person who is the beneficial owner of such Book Entry Interest, as reflected
on the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Registrar" has the meaning set forth in Section 7.4.
"Registration Statements" has the meaning set forth in Section 3.6(b).
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee with direct
responsibility for the administration of this Declaration and also means, with
respect to a particular corporate trust matter, any other officer of the
Property Trustee to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common Trust Securities
and the QUIPS.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Securities Guarantees" means the Common Trust Securities Guarantee
and the QUIPS Guarantee.
"Sponsor" means AmerUs Life Holdings, Inc., an Iowa corporation, or
any successor entity resulting from any merger, consolidation, amalgamation or
other business combination, in its capacity as sponsor of the Trust.
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(1) QUIPS is a servicemark of Goldman, Sachs & Co.
<PAGE>
"Subscription Agreements" means the Common Trust Securities
Subscription Agreement and the Debenture Subscription Agreement.
"Successor Delaware Trustee" has the meaning set forth in Section
5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
3.8(f).
"Successor Securities" has the meaning set forth in Section
3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"10% in liquidation amount" means, with respect to the Trust
Securities, except as provided in the terms of the QUIPS or by the Trust
Indenture Act, Holder(s) of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding QUIPS or
Holders of outstanding Common Trust Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Underwriting Agreement" means the Underwriting Agreement among AmerUs
Life Holdings, Inc., the Trust and the underwriters named therein, dated as of
July 21, 1998, for the initial offering and sale of the Units.
"Units" has the meaning set forth in the Master Unit Agreement.
"1933 Act Registration Statement" has the meaning set forth in
Section 3.6(b).
"1934 Act Registration Statement" has the meaning set forth in
Section 3.6(b).
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application. (a) This Declaration
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration 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 and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.2. Lists of Holders of Securities. (a) Each of the Sponsor
and the Administrators on behalf of the Trust shall provide the Property
Trustee, unless the Property Trustee is Registrar for the Securities (i) on a
quarterly basis on each record date for payment of Distributions, a list, in
such form as the Property Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") as of such record date, and (ii) at
such other times as the Property Trustee may request in writing, within 30 days
of receipt by the Trust of such written request, a List of Holders as of a date
not more than 15 days prior to the time such List of Holders is furnished to the
Property Trustee. The Property Trustee shall preserve, in as current a form as
is reasonably practicable, all information contained in Lists of Holders given
to it or which it receives in the capacity as Paying Agent (if acting in such
capacity), provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Property Trustee. If required by Section
313(a) of the Trust Indenture Act, the Property Trustee shall, within sixty days
after each December 31, following the date of this Indenture, commencing March
1, 1999, deliver to the Holders of QUIPS a brief report, dated as of such March
1, 1999, which complies with the provisions of such Section 313(a) of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to Property Trustee. Each of the
Sponsor and the Administrators on behalf of the Trust shall provide to the
Property Trustee such documents, reports and information as are 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. Delivery of
such documents, reports and information to the Trustee is for informational
purposes only and the Property Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Trust's compliance with any of its
covenants hereunder (as to which the Property Trustee is entitled to rely
exclusively on Officers' Certificates).
Section 2.5. Evidence of Compliance with Conditions Precedent. Each
of the Sponsor and the Administrators on behalf of the Trust shall provide to
the Property Trustee such evidence of compliance with any conditions precedent
provided for in this Declaration 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 2.6. Events of Default; Waiver. (a) The Holders of a
Majority in liquidation amount of QUIPS may, by vote or written consent, on
behalf of the Holders of all of the QUIPS, waive any past Event of Default in
respect of the QUIPS and its consequences, PROVIDED, that if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the QUIPS that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the QUIPS
arising therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or an Event of Default with respect to the QUIPS or impair any right consequent
thereon. Any waiver by the Holders of the QUIPS of an Event of Default with
respect to the QUIPS shall also be deemed to constitute a waiver by the Holders
of the Common Trust Securities of any such Event of Default with respect to the
Common Trust Securities for all purposes of this Declaration without any further
act, vote, or consent of the Holders of the Common Trust Securities.
The Holders of a Majority in liquidation amount of the QUIPS will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee or to direct the exercise of any
trust or power conferred upon the Property Trustee, including the right to
direct the Property Trustee to exercise the remedies available to it as holder
of the Debentures; provided, however, that (subject to the provisions of Section
3.9) the Property Trustee shall have the right to decline to follow any such
direction if the Property Trustee shall determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction
or if the Property Trustee, being advised by counsel, determines that the action
or proceeding so directed may not lawfully be taken or if the Property Trustee,
in good faith, by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or Responsible Officers, shall
determine that the action or proceedings so directed would involve the Property
Trustee in personal liability. If the Property Trustee fails to enforce its
rights under the Debentures after the Holders of a Majority in liquidation
amount of the QUIPS have so directed the Property Trustee, a Holder of record of
such QUIPS may, to the fullest extent permitted by law, institute a legal
proceeding against the Debenture Issuer to enforce the Property Trustee's rights
under the Debentures without first instituting any legal proceeding against the
Property Trustee or any other Person.
(b) The Holders of a Majority in liquidation amount of the Common
Trust Securities may, by vote or written consent, on behalf of the Holders of
all of the Common Trust Securities, waive any past Event of Default with respect
to the Common Trust Securities and its consequences, PROVIDED, that if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Trust Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the Event
of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Trust Securities are deemed to have
waived such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion in aggregate
liquidation amount of the Common Trust Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
PROVIDED FURTHER, each Holder of Common Trust Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Trust Securities and its consequences until all Events of Default with
respect to the QUIPS have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the QUIPS and only the Holders of the QUIPS will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The foregoing
provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
Subject to the foregoing provisions of this Section 2.6(b), upon such waiver,
any such default shall cease to exist and any Event of Default with respect to
the Common Trust Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common Trust
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the QUIPS, constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7. Event of Default; Notice. (a) The Property Trustee
shall, within 90 days after the occurrence of an Event of Default actually known
to a Responsible Officer of the Property Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all defaults with respect to the
Securities actually known to a Responsible Officer of the Property Trustee,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures, the Property Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Property Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 5.01(1) and 5.01(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property Trustee
charged with the administration of the Declaration shall have actual
knowledge.
(c) Within ten Business Days after the occurrence of an Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit notice of such Event of Default to the holders
of the QUIPS, the Administrators and the Sponsor, unless such Event of Default
shall have been cured or waived. The Sponsor and the Administrators shall file
annually with the Property Trustee a certification as to whether or not they are
in compliance with all the conditions and covenants applicable to them under
this Declaration.
ARTICLE III
ORGANIZATION
Section 3.1. Name. The Trust is named "AmerUs Capital II" as such
name may be modified from time to time by the Administrators following written
notice to the Trustees and the Holders of Securities. The Trust's activities may
be conducted under the name of the Trust or any other name deemed advisable by
the Administrators.
Section 3.2. Office. The address of the principal office of the
Trust is c/o AmerUs Life Holdings, Inc., 699 Walnut Street, Des Moines, Iowa
50309. On ten Business Days written notice to the Property Trustee, the
Delaware Trustee and the Holders of Securities, the Administrators may designate
another principal office.
Section 3.3. Purpose. The exclusive purposes and functions of the
Trust are (a) to issue and sell the Securities, (b) use the proceeds from the
sale of the Securities to acquire the Debentures, and (c) except as otherwise
limited herein, to engage in only those other activities necessary or incidental
thereto, including, without limitation, those activities specified in
Sections 3.6, 3.8, 3.9, 3.10, 3.11 and/or 3.12. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, mortgage or
pledge any of its assets, or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust either not to be classified for United
States Federal income tax purposes as a grantor trust or to be classified as an
association taxable as a corporation or as other than a grantor trust for United
States Federal income tax purposes.
Section 3.4. Authority. Subject to the limitations provided in this
Declaration and to the specific duties of the Property Trustee, the
Administrators shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Administrators or any of them in
accordance with their powers shall constitute the act of and serve to bind the
Trust and an action taken by the Property Trustee on behalf of the Trust in
accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Trust and are not intended to be
trustees or fiduciaries with respect to the Trust or the Holders. The Property
Trustee shall have the right, but shall not be obligated except as provided in
Section 3.6, to perform those duties assigned to the Administrators.
Notwithstanding anything in this Declaration to the contrary, (a) the
issuance and sale by the Trust of the Securities in accordance with this
Declaration, the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated by this Declaration, the Securities and the Underwriting Agreement,
and the compliance by the Trust with its obligations thereunder, respectively,
do not violate and shall be deemed not to violate any provision of this
Declaration, (b) the execution, delivery and performance by the Trust of the
Underwriting Agreement is authorized and ratified in all respects, and no
approval or consent of the Sponsor, the Trustees or the Administrators, and no
trust action on the part of the Trust, is required under this Declaration for
such authorization and ratification.
Section 3.5. Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Property Trustee Account or
as otherwise provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
Section 3.6. Powers and Duties of the Administrators. The
Administrators shall have the exclusive power, duty and authority to cause the
Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; PROVIDED, HOWEVER, that (i) except as contemplated in
Section 7.1(a), (A) the Trust may issue no more than one series of QUIPS and no
more than one series of Common Trust Securities and (B) there shall be no
interests in the Trust other than the Securities, and (ii) the issuance of
Securities shall be limited to a simultaneous issuance of both QUIPS and Common
Trust Securities at the Closing Time;
(b) in connection with the registration, issue and sale of the QUIPS,
to:
(i) execute and file on behalf of the Trust, (a) a registration
statement, including pre-effective or post-effective amendments to such
registration statement and any and all amendments to registration
statements filed pursuant to Rule 462(b) promulgated under the Securities
Act, relating to the registration under the Securities Act, of the
Securities (the "1933 Act Registration Statement"), and (b) a registration
statement on Form 8-A or other appropriate form (the "1934 Act Registration
Statement" and together with the 1933 Act Registration Statement, the
"Registration Statements") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Securities of the
Trust under the Exchange Act;
(ii) execute and file on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as the Sponsor, on behalf
of the Trust, may deem necessary or desirable to register the Securities
under the securities or "Blue Sky" laws of any applicable jurisdiction;
(iii) execute and file a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to permit the QUIPS or Units to trade or be
quoted or listed in or on the New York Stock Exchange or any other
securities exchange, quotation system or the Nasdaq National Market;
(iv) execute, deliver and perform on behalf of the Trust such
underwriting or purchase agreements with one or more underwriters,
purchasers or agents relating to the offering of the Securities as the
Sponsor, on behalf of the Trust, may deem necessary or desirable; and
(v) execute and deliver letters, documents or instruments with DTC
and other Clearing Agencies relating to the QUIPS.
(c) to acquire the Debentures with the proceeds of the sale of the
QUIPS and the Common Trust Securities; PROVIDED, HOWEVER, that the
Administrators shall cause legal title to the Debentures to be held of record in
the name of the Property Trustee for the benefit of the Holders;
(d) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of QUIPS and Holders of Common Trust Securities as to
such actions and applicable record dates;
(e) to take all actions and perform such duties as may be required of
the Administrators pursuant to the terms of the Securities;
(f) to the fullest extent permitted by law, to bring or defend, pay,
collect, compromise, arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust (each a "Legal Action"), unless
pursuant to Section 3.8(e), the Property Trustee has the exclusive power to
bring such Legal Action;
(g) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(h) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(i) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Administrator;
(j) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(k) to act as, or appoint another Person to act as, Registrar and
Exchange Agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent is vested in the Property Trustee;
(l) to give prompt written notice to the Property Trustee and to
Holders of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(m) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the QUIPS or to
enable the Trust to effect the purposes for which the Trust was created;
(n) to take any action, not inconsistent with this Declaration, the
certificate of trust of the Trust or with applicable law, that the
Administrators determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this Section 3.6 (as long
as such action does not materially adversely affect the interests of the Holders
of the Securities), including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust not to be classified for United States Federal
income tax purposes as an association taxable as a corporation or as other
than a grantor trust;
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States Federal income tax purposes;
(o) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Administrators, on behalf of the
Trust; and
(p) to execute and deliver all documents, instruments and
certificates, exercise all rights and powers, perform all duties, and do all
things for and on behalf of the Trust in all matters necessary or incidental to
the foregoing.
The Administrators must exercise the powers set forth in this Section
3.6 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3 and with the intentions of the parties set forth in
Section 14.3, and the Administrators shall not take any action that is
inconsistent with the purposes and functions of the Trust and intentions of the
parties set forth in Section 3.3 and Section 14.3, respectively.
Subject to this Section 3.6, the Administrators shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any indebtedness, expenses, taxes or other liabilities incurred by the
Administrators pursuant to this Section 3.6 or otherwise incurred by or on
behalf of the Trust, other than obligations of the Trust to pay to holders of
the QUIPS the amounts due such holders pursuant to the terms of the QUIPS, shall
be paid for in full or reimbursed, as the case may be, by the Debenture Issuer.
Section 3.7. Prohibition of Actions by the Trust, the Administrators
and the Trustees. (a) The Trust shall not, and neither the Administrators nor
the Trustees (including the Property Trustee) shall cause the Trust to, engage
in any activity other than as required or authorized by this Declaration. The
Trust shall not:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders pursuant to
the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures, execute mortgages or pledge any of its
assets;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of conducting any proceeding with respect
to any remedy available to the Debenture Trustee, or exercising any trust
or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that
the principal of all the Debentures shall be due and payable, or (D)
consent to any amendment, modification or termination of the Indenture or
the Debentures where such consent shall be required, unless the Trust shall
have received an opinion of counsel experienced in such matters to the
effect that such action will not cause more than an insubstantial risk that
for United States Federal income tax purposes the Trust will not be
classified as a grantor trust.
Section 3.8. Powers and Duties of the Property Trustee. (a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Property Trustee in trust for the benefit of the Trust and the Holders.
The right, title and interest of the Property Trustee to the Debentures shall
vest automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 5.7. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrators or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders and,
upon the receipt of payments of funds made in respect of the Debentures
held by the Property Trustee, deposit such funds into the Property Trustee
Account and make payments, and/or request the Paying Agent (whether or not
the Property Trustee also acts as Paying Agent) to make payments, to the
Holders of the QUIPS and Holders of the Common Trust Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Trustee Account shall be
maintained by the Property Trustee with First Union National Bank (in its
separate corporate capacity and not in its capacity as Property Trustee) in
its trust department;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the repurchase or redemption of the Securities to the
extent the Debentures are redeemed, repurchased or mature; and
(iii) upon written notice of distribution issued by the
Administrators in accordance with the terms of the Securities, engage in
such ministerial activities as shall be necessary or appropriate to effect
the distribution of the Debentures to Holders of Securities upon the
occurrence of certain events.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Declaration and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee may take any
Legal Action which arises out of or is in connection with an Event of Default of
which a Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Declaration or the Trust
Indenture Act. If such Property Trustee shall have failed to take such Legal
Action, the Holders of the QUIPS, to the fullest extent permitted by applicable
law, may take such Legal Action, to the same extent as if such Holders of QUIPS
held an aggregate principal amount of Debentures equal to the aggregate
liquidation amount of such QUIPS, without first proceeding against the Property
Trustee or the Trust; PROVIDED, HOWEVER, that if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
payable (after giving effect to any permitted deferral of payment of such
interest), then a Holder of QUIPS may directly institute a proceeding against
the Debenture Issuer for enforcement of payment to such Holder of the principal
of or premium, if any, or interest on the Debentures having a principal amount
equal to the aggregate liquidation amount of the QUIPS of such Holder (a "Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the Holders of the Common
Trust Securities will be subrogated to the rights of such Holder of QUIPS (or
Units) to the extent of any payment made by the Debenture Issuer to such Holder
of QUIPS (or Units) in such Direct Action; provided, however, that no such
subrogation right may be exercised so long as an Event of Default has occurred
and is continuing. The Holders of QUIPS will not be able to exercise directly
any other remedy available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders pursuant to the terms of the
Securities; or
(ii) a successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 5.7 (a "Successor Property
Trustee").
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer of
the Property Trustee occurs and is continuing, the Property Trustee shall, for
the benefit of Holders, enforce its rights as holder of the Debentures subject
to the rights of the Holders pursuant to this Declaration (including Annex I)
and the terms of the Securities.
(h) The Property Trustee shall be authorized to undertake any actions
set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all securities and any such Paying Agent
shall comply or shall be caused to comply with Section 317(b) of the Trust
Indenture Act. Any such additional Paying Agent may be removed by the Property
Trustee at any time the Property Trustee remains as Paying Agent and a successor
Paying Agent or additional Paying Agents may be (but are not required to be)
appointed at any time by the Property Trustee.
(j) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Administrators set
forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take, nor
shall the Sponsor or any Administrator direct the Property Trustee to take, any
action that is inconsistent with the purposes and functions of the Trust and
intentions of the parties set out in Section 3.3 and Section 14.3, respectively.
Section 3.9. Certain Duties and Responsibilities of the Property
Trustee. (a) 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 Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Property Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) of
which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, 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.
(b) No provision of this Declaration 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) prior to the occurrence of an 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 Property Trustee shall be
determined solely by the express provisions of this Declaration and in
the Securities and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Declaration and in the Securities, and no implied
covenants or obligations shall be read into this Declaration against
the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property 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 Property
Trustee and conforming to the requirements of this Declaration;
provided, however, that in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be under
a duty to examine the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) 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 QUIPS or the Common Trust Securities, as applicable, 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 Declaration;
(iv) no provision of this Declaration shall require the Property
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 it 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 Declaration or indemnity
reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Property
Trustee Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree in writing with
the Sponsor, and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrators or the Sponsor with their respective
duties under this Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Administrators or the Sponsor.
Section 3.10. Certain Rights of the Property Trustee. (a) Subject to
the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, opinion
of counsel, written representation of Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Administrators
contemplated by this Declaration may be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, 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 conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Administrators;
(iv) 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 re-registration thereof;
(v) the Property Trustee may consult with counsel or other experts of
its selection and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise 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 counsel may be
counsel to the Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from any
court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including reasonable
attorneys' fees and expenses and the expenses of the Property Trustee's
agents, nominees or custodians) 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 Property Trustee provided, that,
nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) 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,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Property 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;
(ix) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities, and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required
to inquire as to the authority of the Property Trustee to so act or as to
its compliance with any of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by the Property Trustee's or
its agent's taking such action;
(x) whenever in the administration of this Declaration 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 which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to direct the
Property Trustee under the terms of the 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 conclusively relying on or acting in accordance
with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration;
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Declaration; and
(xiii) the Property Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of the
Property Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Property
Trustee at the Corporate Trust Office of the Property Trustee, and such
notice references the QUIPS and this Declaration.
(b) No provision of this Declaration 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 3.11. Delaware Trustee. Notwithstanding any other provision
of this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Administrators or the Property Trustee
described in this Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act and shall take such
actions as are expressly required to be taken by the Delaware Trustee under the
Business Trust Act. In the event the Delaware Trustee shall at any time be
required to take any action or perform any duty hereunder, the Delaware Trustee
shall be entitled to the benefits of Section 3.9(b)(ii) to (viii) inclusive, and
Section 3.10. No implied covenants or obligations shall be read into this
Declaration against the Delaware Trustee.
Section 3.12. Execution of Documents. Except as otherwise required
by the Business Trust Act or applicable law, any Administrator is authorized to
execute on behalf of the Trust any documents that the Administrators have the
power and authority to execute pursuant to Section 3.6.
Section 3.13. Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration or the
Securities.
Section 3.14. Duration of Trust. The Trust, unless dissolved
pursuant to the provisions of Article VIII hereof, shall have existence for
seven years from April 14, 1998.
Section 3.15. Mergers. (a) The Trust may not merge or convert with
or into, consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to any Person, except as described in Section 3.15(b) and (c) or Section 3 of
Annex I.
(b) The Trust may, at the request of the Holders of a Majority in
liquidation amount of the Common Trust Securities and without the consent of the
other Holders, the Delaware Trustee or the Property Trustee, merge or convert
with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to, a trust organized as such under the laws of any State; provided that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust with
respect to the QUIPS; or
(B) substitutes for the QUIPS other securities having
substantially the same terms as the QUIPS (the "Successor Securities")
so long as the Successor Securities rank the same as the QUIPS rank
with respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor Entity
that possesses the same powers and duties as the Property Trustee as the
Holder of the Debentures;
(iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the QUIPS are then
listed or quoted, if any;
(iv) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the QUIPS
(including any Successor Securities) or Units to be downgraded by any
nationally recognized statistical rating organization, if then so rated;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of QUIPS (including any
Successor Securities) in any material respect (other than with respect to
any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor has
received an opinion of an independent counsel to the Trust experienced in
such matters to the effect that:
(A) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of QUIPS
(including any Successor Securities) in any material respect (other
than with respect to any dilution of the Holders' interest in the new
entity);
(B) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the
Trust nor the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Trust or
the Successor Entity will continue to or will be classified as a
grantor trust for United States Federal income tax purposes.
(viii) the Sponsor 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 QUIPS Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge or convert with or into, or be replaced by, or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to, any other entity or permit any other entity to
consolidate, amalgamate, merge or convert with or into, or replace it if such
consolidation, amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity to be classified
as an association taxable as a corporation or as other than a grantor trust for
United States Federal income tax purposes.
ARTICLE IV
SPONSOR
Section 4.1. Sponsor's Purchase of Common Trust Securities. At the
Closing Time, the Sponsor will purchase all of the Common Trust Securities then
issued by the Trust, in an amount at least equal to 3% of the total capital of
the Trust, at the same time as (and giving effect to) the QUIPS are issued and
sold.
Section 4.2. Responsibilities of the Sponsor. In connection with the
issue and sale of the QUIPS, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities (and any actions taken by
the Sponsor in furtherance of the following prior to the date of this
Declaration are hereby ratified and confirmed in all respects):
(a) to prepare and file with the Commission and to execute, in the
case of the Registration Statements, on behalf of the Trust, (a) the 1933
Act Registration Statement, including pre-effective or post-effective
amendments to such registration statement and any and all amendments to
such registration statement filed pursuant to Rule 462(b) promulgated under
the Securities Act, relating to the registration under the Securities Act
of the Securities, (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Securities required to be filed pursuant
to the Securities Act, and (c) the 1934 Act Registration Statement
(including all pre-effective and post-effective amendments thereto)
relating to the registration of the Securities of the Trust under the
Exchange Act;
(b) to determine the jurisdictions in which to take appropriate
action to qualify or register for sale all or part of the QUIPS and to do
any and all such acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for execution and
filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable to register the Securities and in order to
comply with the securities or "Blue Sky" laws of any applicable
jurisdiction;
(c) to prepare, execute and file a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to permit the QUIPS and/or the Units to
trade or be quoted or listed in or on the New York Stock Exchange or any
other securities exchange, quotation system or the Nasdaq National Market;
(d) to negotiate the terms of, and execute, the Underwriting
Agreement and the Subscription Agreements, and to enter into and execute
and deliver and perform the same on behalf of the Trust; and
(e) notwithstanding anything to the contrary contained herein, the
Trust shall be authorized to issue and sell the QUIPS at an offering price
per QUIPS to be determined by the Sponsor in its sole and absolute
discretion, including, without limitation, at an offering price that is
less than the liquidation amount of $31.5625 per QUIPS (the "Liquidation
Amount"), which offering price shall be specified in the Prospectus
relating to the Securities, and the Common Trust Securities shall be issued
and sold at an offering price per Common Trust Security that is equal to
the offering price per QUIPS.
Section 4.3. Right to Proceed. The Sponsor acknowledges the rights
of the Holders of QUIPS, in the event that a failure of the Trust to pay
Distributions on the QUIPS is attributable to the failure of the Debenture
Issuer to pay interest or principal on the Debentures, to institute a proceeding
directly against the Debenture Issuer for enforcement of its payment obligations
on the Debentures.
ARTICLE V
TRUSTEES AND ADMINISTRATORS
Section 5.1. Number of Trustees: Appointment of Co-Trustee. The
number of Trustees initially shall be two (2), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees and
Administrators; and
(b) after the issuance of any Securities, the number of Trustees and
Administrators may be increased or decreased by vote of the Holders of a
Majority in liquidation amount of the Common Trust Securities voting as a
class at a meeting of the Holders of the Common Trust Securities; PROVIDED,
HOWEVER, that, there shall be a Delaware Trustee if required by Section
5.2; and there shall be one Trustee who shall be the Property Trustee, and
such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements. Notwithstanding the above, 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 any jurisdiction in which any part of the
Trust's property may at the time be located, the Holders of a Majority in
liquidation amount of the Common Trust Securities acting as a class at a
meeting of the Holders of the Common Trust Securities, and the
Administrators shall have power to appoint one or more persons either to
act as a co-trustee, jointly with the Property Trustee, of all or any part
of the Trust's property, or 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 such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Declaration. In case an Event of Default
has occurred and is continuing, the Property Trustee alone shall have power
to make any such appointment of a co-trustee.
Section 5.2. Delaware Trustee. If required by the Business Trust
Act, one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements
of applicable law; provided that, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
Section 5.3. Property Trustee; Eligibility. (a) There shall at all
times be one Trustee (the "Property Trustee") which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a Person organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the
District of Columbia, or a Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), 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.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Trust Securities (as if it were
the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The QUIPS Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
First Union National Bank
Section 5.4. Certain Qualifications of Administrators and Delaware
Trustee Generally. Each Administrator and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
Section 5.5. Administrators. The initial Administrators shall be:
Michael E. Sproule
c/o AmerUs Life Holdings, Inc.
699 Walnut Street
Des Moines, IA 50309
Michael G. Fraizer
c/o AmerUs Life Holdings, Inc.
699 Walnut Street
Des Moines, IA 50309
James A. Smallenberger
c/o AmerUs Life Holdings, Inc.
699 Walnut Street
Des Moines, IA 50309
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Administrators is called with respect to any matter over which
the Administrators have power to act, any power of the Administrators may be
exercised by, or with the consent of, any one such Administrator.
(b) An Administrator 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 purposes of signing any documents which the Administrators
have power and authority to cause the Trust to execute pursuant to Section 3.6.
(c) The Holders of a Majority in liquidation amount of the Common
Trust Securities may appoint or remove any Administrator without cause at any
time.
(d) An Administrator appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Administrator may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Administrator and
delivered to the Sponsor and the Property Trustee, which resignation shall take
effect upon such delivery or upon such later date as is specified therein.
Section 5.6. Delaware Trustee. The initial Delaware Trustee shall
be:
First Union Trust Company, National Association
One Rodney Square
920 King Street
1st Floor
Wilmington, DE 19801
Attention: Corporate Trust Administration
Section 5.7. Appointment, Removal and Resignation of Trustees. (a)
Subject to Section 5.7(b) and to Section 6(b) of Annex I hereto, Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be continuing
after the issuance of any Securities, by vote of the Holders of a Majority
in liquidation amount of the Common Trust Securities voting as a class at a
meeting of the Holders of the Common Trust Securities; and
(iii) if an Event of Default shall have occurred and be continuing
after the issuance of the Securities, with respect to the Property Trustee
or the Delaware Trustee only, by vote of Holders of a Majority in
liquidation amount of the QUIPS voting as a class at a meeting of Holders
of the QUIPS.
(b)(i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrators and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.7(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Administrators and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective until the first to occur of the following:
(A) a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(B) the assets of the Trust have been completely liquidated and
the proceeds thereof distributed to the Holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Trust Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition, at the expense of the Sponsor, any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
Section 5.8. Vacancies among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Trustees or, if there are more than two, a majority of the Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
Section 5.9. Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Trustees shall
occur, until such vacancy is filled by the appointment of a Trustee in
accordance with Section 5.7, the Property Trustee shall have all the powers
granted to the Trustees and shall discharge all the duties imposed upon the
Trustees by this Declaration.
Section 5.10. Meetings. If there is more than one Administrator,
meetings of the Administrators shall be held from time to time upon the call of
any Administrator. Regular meetings of the Administrators may be held at a time
and place fixed by resolution of the Administrators. Notice of any in-person
meetings of the Administrators shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not less
than 24 hours before such meeting. Notice of any telephonic meetings of the
Administrators or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of an Administrator at a meeting
shall constitute a waiver of notice of such meeting except where an
Administrator attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Administrators may be taken at a meeting by vote of a majority of the
Administrators present (whether in person or by telephone) and eligible to vote
with respect to such matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Administrators. In the event
there is only one Administrator, any and all action of such Administrator shall
be evidenced by a written consent of such Administrator.
Section 5.11. Delegation of Power. (a) Any Trustee or Administrator
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 3.6; and
(b) the Trustees shall have power to delegate from time to time to
such of their number or to other Persons the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Trustees or otherwise as the 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.
Section 5.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee or the Delaware Trustee,
as the case may be, that 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 the Property Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any Person succeeding to all
or substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
Person shall be otherwise qualified and eligible under this Article, without the
execution or filing (except to the extent required under the Business Trust Act)
of any paper or any further act on the part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
Section 6.1. Distributions. Each Holder shall receive Distributions
pro rata in accordance with the applicable terms of such Holder's Securities. If
and to the extent that the Debenture Issuer makes a payment of interest
(including any compounded interest and any Additional Amounts), premium and/or
principal on the Debentures held by the Property Trustee (the amount of any such
payment being a "Payment Amount"), the Property Trustee shall and is directed,
to the extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders in accordance with the
respective terms of the Securities held by them. In the event there is any money
or other property held by or for the Trust that is not accounted for hereunder,
such property shall be distributed pro rata among the Holders of Securities on
the next Distribution Date.
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1. General Provisions Regarding Securities. (a) The
Administrators shall on behalf of the Trust issue one class of preferred
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Annex I (the "QUIPS") and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I (the "Common Trust
Securities"). The Trust shall issue no securities or other interests in the
assets of the Trust other than the QUIPS and the Common Trust Securities and the
aggregate liquidation amount of all Securities issued by the Trust and
outstanding at any time shall not exceed $154,083,549.
(b) The QUIPS rank pari passu, and payment thereon shall be made pro
rata, with the Common Trust Securities except that, where an Event of Default
specified in clause (1), (2) or (3) of the definition of Event of Default in the
Indenture has occurred and is continuing, the rights of Holders of the Common
Trust Securities to payment in respect of Distributions and payments upon
liquidation, redemption, repurchase and otherwise are subordinated to the rights
to payment of the Holders of the QUIPS.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the QUIPS as provided in this Declaration, the
QUIPS so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(e) Every Person that becomes a Holder or a QUIPS Beneficial Owner in
accordance with the terms of this Declaration, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Declaration and
the QUIPS Guarantee.
Section 7.2. Execution and Authentication. (a) The Securities shall
be signed on behalf of the Trust by one or more Administrators. Such signature
may be the manual or facsimile signature of any Administrator. In case any
Administrator of the Trust who shall have signed any of the Securities shall
cease to be such Administrator before the Securities so signed shall be
delivered by the Trust, such Securities nevertheless may be delivered as though
the person who signed such Securities had not ceased to be such Administrator;
and any Securities may be signed on behalf of the Trust by such persons who, at
the actual date of execution of such Security, shall be the Administrators of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such an Administrator.
(b) A Common Trust Security shall be deemed validly issued upon
execution by an Administrator without any act of the Property Trustee. A QUIPS
shall not be valid until authenticated by the manual signature of an authorized
signatory of the Property Trustee. Such signature shall be conclusive evidence
that the QUIPS have been authenticated under this Declaration.
Upon a written order of the Trust signed by one Administrator, the
Property Trustee shall authenticate the QUIPS for original issue. The Property
Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate QUIPS. An authenticating agent may authenticate QUIPS whenever the
Property Trustee may do so. Each reference in this Declaration to authentication
by the Property Trustee includes authentication by such agent. An authenticating
agent has the same rights as the Property Trustee hereunder with respect to the
Sponsor or an Affiliate. The aggregate number of QUIPS outstanding at any time
shall not exceed the number set forth in the Terms in Annex I hereto except as
provided in Section 7.6.
Section 7.3. Form and Dating. (a) The QUIPS and the Property
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A-1 and the Common Trust Securities shall be substantially in the form
of Exhibit A-2, each of which is hereby incorporated in and expressly made a
part of this Declaration. Certificates representing the Securities may be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrators, as evidenced by their execution
thereof. The Securities may have letters, CUSIP or other numbers, notations or
other marks of identification or designation and such legends or endorsements
required by law, stock exchange rule, agreements to which the Trust is subject,
if any, or usage (provided that any such notation, legend or endorsement is in a
form acceptable to the Trust). The Trust, at the direction of the Sponsor,
shall furnish any such legend not contained in Exhibit A-1 to the Property
Trustee in writing. Each QUIPS shall be dated the date of its authentication.
The terms and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1 and A-2 are part of the terms of this
Declaration and to the extent applicable, the Property Trustee and the Sponsor,
by their execution and delivery of this Declaration, expressly agree to such
terms and provisions and to be bound thereby.
(b) Global Securities. If no QUIPS constitute Pledged Securities (as
defined in the Master Unit Agreement), the QUIPS will be represented in the form
of one or more permanent global securities in definitive, fully registered form
with the global legend set forth in Exhibit A-1 hereto (a "Global Security"),
which shall be deposited on behalf of the holders of the Units with the Property
Trustee, at its Charlotte office, as custodian for the Clearing Agency, and
registered in the name of the Clearing Agency or a nominee of the Clearing
Agency, duly executed by the Trust and authenticated by the Property Trustee as
hereinafter provided. The number of QUIPS represented by the Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Property Trustee and the Clearing Agency or its nominee as hereinafter
provided.
(c) Book-Entry Provisions. This Section 7.3(c) shall apply only to
the Global Security and such other QUIPS in global form as may be authorized by
the Trust to be deposited with or on behalf of the Clearing Agency.
The Trust shall execute and the Property Trustee shall, in accordance
with this Section 7.3, authenticate and make available for delivery initially
one or more Global Securities that (i) shall be registered in the name of Cede &
Co. or other nominee of such Clearing Agency and (ii) shall be delivered by the
Property Trustee to such Clearing Agency or pursuant to such Clearing Agency's
written instructions or, if no such written instructions are received by the
Property Trustee, held by the Property Trustee as custodian for the Clearing
Agency.
Members of, or participants in, the Clearing Agency ("Participants")
shall have no rights under this Declaration with respect to any Global Security
held on their behalf by the Clearing Agency or by the Property Trustee as the
custodian of the Clearing Agency or under such Global Security, and the Clearing
Agency may be treated by the Trust, the Property Trustee and any agent of the
Trust or the Property Trustee as the absolute owner of such Global Security for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trust, the Property Trustee or any agent of the Trust or the
Property Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Clearing Agency or impair, as between the
Clearing Agency and its Participants, the operation of customary practices of
such Clearing Agency governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
(d) Definitive QUIPS. Except as provided in Section 7.9, owners of
beneficial interests in a Global Security will not be entitled to receive
physical delivery of certificated QUIPS ("Definitive QUIPS").
Section 7.4. Registrar, Paying Agent and Exchange Agent. The Trust
shall maintain in Charlotte, North Carolina or at the principal offices of the
Property Trustee, (i) an office or agency where QUIPS may be presented for
registration of transfer ("Registrar") and (ii) an office or agency where QUIPS
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the QUIPS and of their transfer. The Property Trustee may appoint
the Registrar and the Paying Agent and may appoint one or more co-registrars and
one or more additional paying agents in such other locations as it shall
determine. The term "Registrar" includes any additional registrar and the term
"Paying Agent" includes any additional paying agent. The Property Trustee may
change any Paying Agent or Registrar without prior notice to any Holder. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Property Trustee (if not the Paying Agent) and the Administrators.
The Trust shall notify the Property Trustee of the name and address of any Agent
not a party to this Declaration. In the event that the Property Trustee shall no
longer be the Paying Agent or the Registrar, the Administrators shall appoint
another entity as Registrar or Paying Agent. The Trust or any of its Affiliates
may act as Paying Agent or Registrar. The Trust shall act as Paying Agent and
Registrar for the Common Trust Securities.
The Property Trustee will initially act as Registrar and Paying Agent
for the QUIPS.
Section 7.5. Paying Agent to Hold Money in Trust. The Trust shall
require each Paying Agent other than the Property Trustee to agree in writing
that the Paying Agent will hold in trust for the benefit of Holders or the
Property Trustee all money held by the Paying Agent for the payment of
liquidation amounts or Distributions on the Securities, and will notify the
Property Trustee if there are insufficient funds for such purpose. While any
such insufficiency continues, the Property Trustee may require a Paying Agent to
pay all money held by it to the Property Trustee. The Trust at any time may
require a Paying Agent to pay all money held by it to the Property Trustee and
to account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the money. If the Trust or the Sponsor or
an Affiliate of the Trust or the Sponsor acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent.
Section 7.6. Replacement Securities. If a Holder claims that a
certificate evidencing the Securities owned by it has been lost, destroyed or
wrongfully taken or if such certificate is mutilated and is surrendered to the
Trust, or in the case of a certificate evidencing QUIPS, to the Property
Trustee, and the Property Trustee shall receive evidence to its satisfaction of
the destruction, loss or theft of such certificate and there shall be delivered
to the Property Trustee and the Administrators such security or indemnity as may
be required by them to keep each of them harmless, then, in the absence of
notice that such certificate shall have been acquired by a protected purchaser,
an Administrator on behalf of the Trust shall execute (and in the case of a
certificate evidencing QUIPS, the Property Trustee shall authenticate) and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen certificate, a new certificate of like denomination. In connection with
the issuance of any new certificate under this Section 7.6, the Registrar or the
Administrators 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 certificate issued pursuant to this Section 7.6 shall constitute
conclusive evidence of or ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed certificate
shall be found at any time.
Section 7.7. Outstanding QUIPS. The QUIPS outstanding at any time
are all the QUIPS authenticated by the Property Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding. If a QUIPS is replaced paid or purchased,
pursuant to Section 7.6 or Section 7.10, it ceases to be outstanding unless the
Property Trustee receives proof satisfactory to it that the replaced QUIPS is
held by a protected purchaser. If QUIPS are considered paid in accordance with
the terms of this Declaration, they cease to be outstanding and Distributions on
them shall cease to accumulate.
A QUIPS does not cease to be outstanding because one of the Trust, the
Sponsor or an Affiliate of the Sponsor holds the Security.
Section 7.8. QUIPS in Treasury. In determining whether the Holders
of the required amount of Securities have concurred in any direction, waiver or
consent, QUIPS owned by the Trust, the Sponsor or an Affiliate of the Sponsor,
as the case may be, shall be disregarded and deemed not to be outstanding,
except that for the purposes of determining whether the Property Trustee shall
be fully protected in relying on any such direction, waiver or consent, only
Securities which a Responsible Officer of the Property Trustee actually knows
are so owned shall be so disregarded.
Section 7.9. Temporary Securities. (a) Until definitive securities
are ready for delivery, the Trust may prepare and, in the case of the QUIPS, the
Property Trustee shall authenticate temporary securities. Temporary Securities
shall be substantially in the form of definitive securities but may have
variations that the Trust considers appropriate for temporary securities.
Without unreasonable delay, the Trust shall prepare and, in the case of the
QUIPS, the Property Trustee shall authenticate definitive securities in exchange
for temporary securities.
(b) A Global Security deposited with the Clearing Agency or with the
Property Trustee as custodian for the Clearing Agency pursuant to Section 7.3
shall be transferred to the beneficial owners thereof in the form of Definitive
QUIPS only if such transfer complies with Section 9.2 and (i) the Clearing
Agency notifies the Sponsor that it is unwilling or unable to continue as
Clearing Agency for such Global Security or if at any time such Clearing Agency
ceases to be a "clearing agency" registered under the Exchange Act and a
clearing agency is not appointed by the Sponsor within 90 days of such notice,
(ii) a Default or an Event of Default has occurred and is continuing, or (iii)
the Trust at its sole discretion elects to cause the issuance of Definitive
QUIPS.
(c) Any Global Security that is transferable to the beneficial owners
thereof in the form of Definitive QUIPS pursuant to this Section 7.9 shall be
surrendered by the Clearing Agency to the Property Trustee to be so transferred,
in whole or from time to time in part, without charge, and the Property Trustee
shall authenticate and make available for delivery, upon such transfer of each
portion of such Global Security, an equal aggregate liquidation amount of
Securities of authorized denominations in the form of Definitive QUIPS. Any
portion of a Global Security transferred pursuant to this Section shall be
registered in such names as the Clearing Agency shall direct.
(d) Subject to the provisions of Section 7.9(c), the Holder of a
Global Security may grant proxies and otherwise authorize any Person, including
Participants and Persons that may hold interests through Participants, to take
any action which such Holder is entitled to take under this Declaration or the
Securities.
(e) In the event of the occurrence of any of the events specified in
Section 7.9(b), the Trust will promptly make available to the Property Trustee a
reasonable supply of Definitive QUIPS in fully registered form without
distribution coupons.
Section 7.10. Cancellation. The Trust at any time may deliver QUIPS
to the Property Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Property Trustee any QUIPS surrendered to them for registration
of transfer, redemption, repurchase, exchange or payment. The Property Trustee
shall promptly cancel all QUIPS surrendered for registration of transfer,
redemption, repurchase, exchange, payment, replacement or cancellation and shall
dispose of canceled QUIPS as the Trust directs, provided that the Property
Trustee shall not be obligated to destroy QUIPS. The Trust may not issue new
QUIPS to replace QUIPS that it has paid or that have been delivered to the
Property Trustee for cancellation or that any holder has exchanged.
Section 7.11. CUSIP Numbers. The Trust in issuing the QUIPS may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices as a convenience to Holders of QUIPS;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the QUIPS or as contained in
any such notice and that reliance may be placed only on the other identification
numbers printed on the QUIPS, and any such notice shall not be affected by any
defect in or omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the "CUSIP" numbers.
ARTICLE VIII
DISSOLUTION OF TRUST
Section 8.1. Dissolution of Trust. (a) The Trust shall automatically
dissolve:
(i) upon a Bankruptcy Event of the Sponsor;
(ii) upon the filing of a certificate of dissolution or liquidation or
its equivalent with respect to the Sponsor; or the revocation of the
Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) after satisfaction of liabilities to creditors of the Trust
as required by applicable law, following the distribution of a Like Amount
of the Debentures to the Holders, provided that the Property Trustee has
received written notice from the Sponsor, as holder of all of the issued
and outstanding Common Trust Securities directing the Property Trustee, to
dissolve the Trust (which direction is optional, and except as otherwise
expressly provided below, within the discretion of the Sponsor);
(iv) upon the entry of a decree of judicial dissolution of the Trust
by a court of competent jurisdiction;
(v) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders in accordance with the terms of the Securities;
(vi) upon the repayment of the Debentures or at such time as no
Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided in Section
3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) or Section 8.1(c), and after the completion of the
winding up of the Trust's affairs, the Administrators shall file a certificate
of cancellation with the Secretary of State of the State of Delaware.
(c) Subject to the conditions set forth in the Declaration and the
Indenture, the Sponsor may at any time direct the Property Trustee to dissolve
the Trust and, after satisfaction of liabilities to creditors of the Trust as
required by applicable law, cause the Debentures to be distributed to the
holders of the Securities in liquidation of the Trust.
(d) The provisions of Section 3.9, Article X and Section 11.2 shall
survive the termination of the Trust and the registration or removal of any
Trustee.
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1. Transfer of Securities. (a) Securities may only be
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration and the terms of the Securities. Any transfer or
purported transfer of any Security not made in accordance with this Declaration
shall be null and void.
(b) Subject to this Article IX, QUIPS may only be transferred, in
whole or in part, in accordance with the terms and conditions set forth in this
Declaration. To the fullest extent permitted by law, any transfer or purported
transfer of any security not made in accordance with this Declaration shall be
null and void.
(c) The Sponsor may not transfer the Common Trust Securities;
PROVIDED, HOWEVER, that any permitted successor of the Sponsor under the
Indenture may succeed to the Sponsor's ownership of the Common Trust Securities.
(d) The Registrar shall provide for the registration of Securities
and of the transfer of Securities, which will be effected without charge but
only upon payment (with such indemnity as the Registrar may require) in respect
of any tax or other governmental charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any Securities, the Registrar
shall cause one or more new Securities to be issued in the name of the
designated transferee or transferees. Every Security surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Property Trustee. A transferee
of a Security shall be entitled to the rights and subject to the obligations of
a Holder hereunder upon the receipt by such transferee of a Security. By
acceptance of a Security, each transferee shall be deemed to have agreed to be
bound by this Declaration.
Section 9.2. Transfer Procedures and Restrictions. (a) Transfer and
Exchange of Definitive QUIPS. When Definitive QUIPS are presented to the
Registrar or co-Registrar:
(i) to register the transfer of such Definitive QUIPS; or
(ii) to exchange such Definitive QUIPS which became mutilated,
destroyed, defaced, stolen or lost, for an equal number of Definitive
QUIPS,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested; PROVIDED, HOWEVER, that the Definitive QUIPS surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Trust and the
Registrar or co-registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(b) Transfer of a Definitive QUIPS for a Beneficial Interest in a
Global Security. A Definitive QUIPS may not be exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Property Trustee of a Definitive QUIPS, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Property Trustee, together with written instructions
directing the Property Trustee to make, or to direct the Clearing Agency to
make, an adjustment on its books and records with respect to the appropriate
Global Security to reflect an increase in the number of the QUIPS represented by
such Global Security, then the Property Trustee shall cancel such Definitive
QUIPS and cause, or direct the Clearing Agency to cause, the aggregate number of
QUIPS represented by the appropriate Global Security to be increased
accordingly. If no Global Securities are then outstanding, the Trust shall issue
and the Property Trustee shall authenticate, upon written order of any
Administrator, an appropriate number of QUIPS in global form.
(c) Transfer and Exchange of Global Securities. Subject to Section
9.2(d), the transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Clearing Agency, in accordance with this
Declaration (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive QUIPS.
(i) If none of the QUIPS constitute Pledged Securities and are
thereafter represented by one or more permanent Global Securities in
definitive, fully registered form, any Person having a beneficial interest
in a Global Security may upon request, but only upon 20 days prior notice
to the Property Trustee, and if accompanied by the information specified
below, exchange such beneficial interest for a Definitive QUIPS
representing the same number of QUIPS. Upon receipt by the Property Trustee
from the Clearing Agency or its nominee on behalf of any Person having a
beneficial interest in a Global Security of written instructions or such
other form of instructions as is customary for the Clearing Agency or the
Person designated by the Clearing Agency as having such a beneficial
interest in a QUIPS and a certification from the transferor (in a form
substantially similar to that attached hereto as the "Form of Assignment"
in Exhibit A-1), which may be submitted by facsimile, then the Property
Trustee will cause the aggregate number of QUIPS represented by Global
Securities to be reduced on its books and records and, following such
reduction, the Trust will execute and the Property Trustee will
authenticate and make available for delivery to the transferee a Definitive
QUIPS.
(ii) Definitive QUIPS issued in exchange for a beneficial interest in
a Global Security pursuant to this Section 9.2(d) shall be registered in
such names and in such authorized denominations as the Clearing Agency,
pursuant to instructions from its Participants or indirect participants or
otherwise, shall instruct the Property Trustee in writing. The Property
Trustee shall deliver such QUIPS to the Persons in whose names such QUIPS
are so registered in accordance with such instructions of the Clearing
Agency.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in subsection (f) of this Section 9.2), a Global Security
may not be transferred as a whole except by the Clearing Agency to a nominee of
the Clearing Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee of such
successor Clearing Agency.
(f) Authentication of Definitive QUIPS. If at any time:
(i) there occurs a Default or an Event of Default which is
continuing, or
(ii) the Trust, at the direction of the Sponsor, as Holder of all of
the issued and outstanding QUIPS, notifies the Property Trustee in writing
that it elects to cause the issuance of Definitive QUIPS under this
Declaration, then the Trust will execute, and the Property Trustee, upon
receipt of a written order of the Trust signed by one Administrator
requesting the authentication and delivery of Definitive QUIPS to the
Persons designated by the Trust, will authenticate and make available for
delivery Definitive QUIPS, equal in number to the number of QUIPS
represented by the Global Securities, in exchange for such Global
Securities.
(g) Cancellation or Adjustment of Global Security. At such time as
all beneficial interests in a Global Security have either been exchanged for
Definitive QUIPS to the extent permitted by this Declaration or redeemed,
repurchased or canceled in accordance with the terms of this Declaration, such
Global Security shall be returned to the Clearing Agency for cancellation or
retained and canceled by the Property Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive QUIPS, QUIPS represented by such Global Security shall be reduced and
an adjustment shall be made on the books and records of the Property Trustee (if
it is then the custodian for such Global Security) with respect to such Global
Security, by the Property Trustee or the Securities custodian, to reflect such
reduction.
(h) Obligations with Respect to Transfers and Exchanges of QUIPS.
(i) To permit registrations of transfers and exchanges, an
Administrator on behalf of the Trust shall execute and the Property Trustee
shall authenticate Definitive QUIPS and Global Securities at the
Registrar's or co-Registrar's request in accordance with the terms of this
Declaration.
(ii) Registrations of transfers or exchanges will be effected without
charge, but only upon payment (with such indemnity as the Trust or the
Sponsor may require) in respect of any tax or other governmental charge
that may be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of QUIPS during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption of QUIPS and ending at the close of business on the day of such
mailing.
(iv) Prior to the due presentation for registrations of transfer of
any QUIPS, the Trust, the Property Trustee, the Paying Agent, the Registrar
or any co-registrar may deem and treat the person in whose name a QUIPS is
registered as the absolute owner of such QUIPS for the purpose of receiving
Distributions on such QUIPS and for all other purposes whatsoever, and none
of the Trust, the Property Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All QUIPS issued upon any transfer or exchange pursuant to the
terms of this Declaration shall evidence the same security and shall be
entitled to the same benefits under this Declaration as the QUIPS
surrendered upon such transfer or exchange.
(i) No Obligation of the Property Trustee.
The Property Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a Participant in the Clearing Agency
or other Person with respect to the accuracy of the records of the Clearing
Agency or its nominee or of any Participant thereof, with respect to any
ownership interest in the QUIPS or with respect to the delivery to any
Participant, beneficial owner or other Person (other than the Clearing
Agency) of any notice (including any notice of redemption) or the payment
of any amount, under or with respect to such QUIPS. All notices and
communications to be given to the Holders and all payments to be made to
Holders under the QUIPS shall be given or made only to or upon the order of
the registered Holders (which shall be the Clearing Agency or its nominee
in the case of a Global Security). The rights of beneficial owners in any
Global Security shall be exercised only through the Clearing Agency subject
to the applicable rules and procedures of the Clearing Agency. The Property
Trustee may conclusively rely and shall be fully protected in relying upon
information furnished by the Clearing Agency or any agent thereof with
respect to its Participants and any beneficial owners.
Section 9.3. Deemed Security Holders. Except when QUIPS constitute
Pledged Securities held for the benefit of the holders of Units, the Trustees
may treat the Person in whose name any Security shall be registered on the books
and records of the Trust as the sole owner of such Security for purposes of
receiving Distributions and for all other purposes whatsoever and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such Security on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 9.4. Book Entry Interests. Global Securities shall initially
be registered on the books and records of the Trust in the name of Cede & Co.,
the nominee of the Clearing Agency, and no QUIPS Beneficial Owner will receive a
definitive certificate representing such QUIPS Beneficial Owner's interests in
such Global Securities, except as provided in Section 9.2. Unless and until
definitive, fully registered certificates representing QUIPS have been issued to
the QUIPS Beneficial Owners pursuant to Section 9.2 and Section 7.9:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment of
Distributions on the Global Securities and receiving approvals, votes or
consents hereunder) as the sole holder of the Global Securities and shall have
no obligation to the QUIPS Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this Section
9.4 shall control; and
(d) the rights of the QUIPS Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such QUIPS Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants and receive and transmit payments of
Distributions on the Global Securities to such Clearing Agency Participants. DTC
will make book entry transfers among the Clearing Agency Participants.
Section 9.5. Notices to Clearing Agency. Whenever a notice or other
communication to the Holders of QUIPS is required to be given by a Trustee under
this Declaration and such QUIPS are in the form of Global Securities, such
Trustee shall give all such notices and communications specified herein to be
given to the Holders of Global Securities to the Clearing Agency, and shall have
no notice obligations to the QUIPS Beneficial Owners.
Section 9.6. Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depositary with
respect to the QUIPS, the Administrators may, in their sole discretion, appoint
a successor Clearing Agency with respect to such QUIPS.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES,
ADMINISTRATORS OR OTHERS
Section 10.1. Liability. (a) Except as expressly set forth in this
Declaration, the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and obligations
of the Trust (other than with respect to the Securities) to the extent not
satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the QUIPS 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.
Section 10.2. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, by reason of such Trustee's
negligence) or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 10.3. Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provide terms that are, fair and reasonable to the Trust or any
Holder of Securities.
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement, transaction
or situation and the benefits and burdens relating to such interests, any
customary or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
Section 10.4. Indemnification. (a)(i) The Sponsor shall indemnify,
to the full extent permitted by law, any Company Indemnified Person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason of the fact that
he is or was a Company Indemnified Person against expenses (including attorneys'
fees and expenses) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 10.4(a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made by the Holder of the Common Trust Securities.
(v) To the fullest extent permitted by law, expenses (including
attorneys' fees and expenses) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Sponsor in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Sponsor as authorized in this
Section 10.4(a). Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made by the Holder of the
Common Trust Securities, that, based upon the facts known to the Holder of the
Common Trust Securities at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Holder of the Common
Trust Securities reasonably determines that such person deliberately breached
his duty to the Trust or its Common Trust Securities or QUIPS Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Sponsor or Holders of the QUIPS
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a contract between the
Sponsor and each Company Indemnified Person who serves in such capacity at any
time while this Section 10.4(a) is in effect. Any repeal or modification of
this Section 10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the provisions of this
Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(b) The Sponsor agrees, to the fullest extent permitted by law, to
(A) indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Property Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv), including the
Property Trustee and the Delaware Trustee in their respective individual
capacities, being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based on
the income of such Fiduciary Indemnified Person) incurred without gross
negligence (or, in the case of the Property Trustee, incurred without ordinary
negligence) or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder and (B) to
advance, from time to time, prior to the final disposition of any claim, demand,
action, suit or proceeding for which indemnification is authorized pursuant to
subsection (b)(A) above, any expenses (including reasonable legal fees) incurred
by a Fiduciary Indemnified Person in defending such claim, demand, action, suit
or proceeding upon receipt by the Sponsor of an undertaking by or on behalf of
the Fiduciary Indemnified Person to repay such amount if it shall be determined
that the Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in subsection (b)(A) above. The obligation to indemnify and advance
expenses as set forth in this Section 10.4(b) shall survive the satisfaction and
discharge of this Declaration and the Trust and shall survive the resignation or
removal of such Fiduciary Indemnified Person.
(c) The Sponsor agrees to pay the Property Trustee and the Delaware
Trustee, from time to time, such compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Property Trustee and the Delaware Trustee
hereunder as may be mutually agreed upon in writing by the Sponsor and the
Property Trustee or the Delaware Trustee, as the case may be, and, except as
otherwise expressly provided herein, to reimburse the Property Trustee and the
Delaware Trustee upon its or their request for all reasonable expenses
(including counsel fees and expenses), disbursements and advances incurred or
made by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Declaration.
Section 10.5. Outside Businesses. Any Covered Person, the Sponsor,
the Delaware Trustee and the Property Trustee (subject to Section 5.3(c)) may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the Holders shall have no rights by virtue of
this Declaration in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee, or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary, trustee or agent for, or act on any committee or body
of holders of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
Section 11.1. Fiscal Year. The fiscal year ("Fiscal Year") of the
Trust shall be the calendar year, or such other year as is required by the Code.
Section 11.2. Certain Accounting Matters. (a) At all times during
the existence of the Trust, the Administrators shall keep, or cause to be kept,
full books of account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The Trust shall use the
accrual method of accounting for United States Federal income tax purposes. The
books of account and the records of the Trust shall be examined by and reported
upon as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Administrators.
(b) The Administrators shall cause to be duly prepared and delivered
to each of the Holders, any annual United States Federal income tax information
statement, required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Administrators shall endeavor to deliver all such
information statements within 90 days after the end of each Fiscal Year of the
Trust.
(c) The Administrators shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States Federal income tax
return, on a Form 1041 or such other form required by United States Federal
income tax law, and any other annual income tax returns required to be filed by
the Administrators on behalf of the Trust with any state or local taxing
authority.
Section 11.3. Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the Property
Trustee shall be made directly to the Property Trustee Account and no other
funds of the Trust shall be deposited in the Property Trustee Account. The sole
signatories for such accounts shall be designated by the Administrators;
provided, however, that the Property Trustee shall designate the signatories for
the Property Trustee Account.
Section 11.4. Withholding. The Trust and the Administrators shall
comply with all withholding requirements under United States Federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrators
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any authority
with respect to Distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1. Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by:
(i) if the amendment affects the rights, powers, duties, obligations
or immunities of the Administrators, the Administrators (or if there are
more than two Administrators, a majority of the Administrators);
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from the Sponsor
that such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property Trustee
or the Delaware Trustee, the Property Trustee and the Delaware Trustee
shall have first received:
(A) an Officers' Certificate from the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities); and
(B) an Opinion of Counsel that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the terms of
the Securities); provided, however, that the Property Trustee shall
not be required to sign any such amendment; and
(C) a consent in writing by the Property Trustee or the Delaware
Trustee, as the case may be (which consent may be withheld in such
Trustee's sole discretion); and
(iii) unless the Property Trustee shall have first received an
Opinion of Counsel that such amendment or the exercise of any power granted
to the Property Trustee or Delaware Trustee in accordance with such
amendment will not:
(A) cause the Trust to be classified for purposes of United
States Federal income taxation as an association taxable as a
corporation or as other than a grantor trust; or
(B) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) Except as provided in Section 12.1(d), (e) or (h), no amendment
shall be made, and any such purported amendment shall be void and ineffective
unless the Holders of a Majority in liquidation amount of the QUIPS (or Units)
shall have consented to such amendment.
(d) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Holder, this Declaration may
not be amended to (i) change the amount or timing of any Distribution or other
payment on the Securities (including payment of the Put Price (as defined in the
Indenture) or otherwise adversely affect the amount of any distribution required
to be made in respect of the Securities as of a specified date or (ii) restrict
the right of a Holder of Securities to institute suit for the enforcement of any
such payment on or after such date.
(e) Section 9.1(b) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities.
(f) Article Four shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Trust Securities.
(g) The rights of the holders of the Common Trust Securities under
Article Five to increase or decrease the number of, and appoint and remove
Trustees or Administrators shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Trust Securities.
(h) Notwithstanding Section 12.1(c), this Declaration may be amended
from time to time by the Sponsor and the Property Trustee without the consent of
the Holders of the Securities to:
(i) cure any ambiguity, correct or supplement any provision in this
Declaration that may be inconsistent with any other provision of this
Declaration or to make any other provisions with respect to matters or
questions arising under this Declaration which shall not be inconsistent
with the other provisions of the Declaration; or
(ii) to modify, eliminate or add to any provisions of the Declaration
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
or as other than an association taxable as a corporation at all times that
any Securities are outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the Investment Company
Act;
provided, however, that in the case of clauses (i) and (ii), such action shall
not adversely affect in any material respect the interests of the Holders, and
any amendments of this Declaration pursuant to Section 12.1(h) shall become
effective when notice thereof is given to the Holders of the Securities.
(i) If so directed by all of the Holders of a class of Securities at
a meeting of the Holders of such class, the Trustees, the Sponsor and the
Trust shall take such actions as are necessary to amend this Declaration
and to permit Holders of such class to reconstitute all of the Securities
of such class with a liquidation amount of $1,000 per each Security of such
class.
Section 12.2. Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at any time
by the Administrators (or as otherwise provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the QUIPS listed or
admitted for trading. The Administrators shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Administrators one or more notices in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders calling a
meeting shall specify in writing the Securities held by the Holders exercising
the right to call a meeting and only those Securities specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given by the Property Trustee
to all the Holders of Securities having a right to vote thereat at least
seven days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders is permitted or
required under this Declaration or the rules of any stock exchange on which
the QUIPS are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders. Any action that may be
taken at a meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so taken is signed
by the Holders of Securities owning not less than the minimum amount of
Securities in liquidation amount that would be necessary to authorize or
take such action at a meeting at which all Holders having a right to vote
thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders entitled to vote who have
not consented in writing. The Administrators may specify that any written
ballot submitted to the Security Holder for the purpose of taking any
action without a meeting shall be returned to the Trust within the time
specified by the Administrators;
(ii) each Holder may authorize any Person to act for it by proxy on
all matters in which a Holder is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable at
the discretion of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Holders
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the
Administrators or by such other Person that the Administrators may
designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the QUIPS or Units are then listed or trading, otherwise
provides, the Administrators, in their sole discretion, shall establish all
other provisions relating to meetings of Holders, including notice of the
time, place or purpose of any meeting at which any matter is to be voted on
by any Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum requirements,
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 13.1. Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a national banking association with trust
powers and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee and under Delaware law (excluding securities
laws) constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) The execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(d) No consent, approval or authorization of, or registration with or
notice to, any Federal banking authority is required for the execution, delivery
or performance by the Property Trustee of this Declaration.
Section 13.2. Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a national banking association with trust
powers and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Delaware Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. This Declaration has been duly executed and
delivered by the Delaware Trustee under Delaware law (excluding securities laws)
and constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration with or
notice to, any federal banking authority is required for the execution, delivery
or performance by the Delaware Trustee of this Declaration; and
(d) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
Section 14.1. Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders):
AmerUs Capital II
c/o AmerUs Life Holdings
699 Walnut Street
Des Moines, IA 50309
Attention: James A. Smallenberger, Administrator
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders):
First Union Trust Company, National Association
One Rodney Square
920 King Street
1st Floor
Wilmington, DE 19801
Attention: Corporate Trust Administration
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Holders):
First Union National Bank
230 South Street
Charlotte, NC 28288-1179
Attention: Corporate Trust Group
(d) if given to the Holder of the Common Trust Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Trust Securities may give notice to the Trust):
AmerUs Life Holdings
699 Walnut Street
Des Moines, IA 50309
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices 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 14.2. Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
Section 14.3. Intention of the Parties. It is the intention of the
parties hereto that for United States Federal income tax purposes the Trust be
classified as a grantor trust and the Debentures as indebtedness. The provisions
of this Declaration shall be interpreted to further this intention of the
parties. The parties hereto agree and any Holder by the acquisition of a
Security shall be deemed to have agreed to treat the Trust as a grantor trust
and the Debentures as indebtedness in all tax and accounting filings and
reports.
Section 14.4. Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
Section 14.5. Successors and Assigns. Whenever in this Declaration
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
Section 14.6. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
Section 14.7. Counterparts. This Declaration may contain more than
one counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
/s/ Michael E. Sproule
----------------------------
Michael E. Sproule
as Administrator
/s/ Michael G. Fraizer
----------------------------
Michael G. Fraizer
as Administrator
/s/ James A. Smallenberger
----------------------------
James A. Smallenberger
as Administrator
FIRST UNION TRUST COMPANY,
National Association,
as Delaware Trustee
/s/ Stephen J. Kaba
By:-------------------------
Name: Stephen J. Kaba
Title: Vice President
FIRST UNION NATIONAL BANK,
as Property Trustee
/s/ Shawn K. Bednasek
By:-------------------------
Name: Shawn K. Bednasek
Title: Vice President
<PAGE>
AMERUS LIFE HOLDINGS, INC.,
as Sponsor
/s/ James A. Smallenberger
By:--------------------------
Name: James A. Smallenberger
Title: Senior Vice President
and Secretary
<PAGE>
ANNEX I
TERMS OF
6.86% QUARTERLY INCOME PREFERRED SECURITIES
6.86% COMMON TRUST SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of July 27, 1998 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Declaration or, if not defined in such Declaration, as defined in the Prospectus
referred to below in Section 2(c) of this Annex I):
1. Designation and Number.
(a) Quarterly Income Preferred Securities. 4,150,000 Quarterly
Income Preferred Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of one hundred thirty million, nine
hundred eighty-four thousand, three hundred seventy-five dollars ($130,984,375),
and each with a liquidation amount with respect to the assets of the Trust of
$31.5625 per security, are hereby designated for the purposes of identification
only as "6.86% Quarterly Income Preferred Securities" (the "QUIPS"). The
certificates evidencing the QUIPS shall be substantially in the form of Exhibit
A-1 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice or to conform
to the rules of any exchange or quotation system on which the QUIPS are listed,
traded or quoted, if any.
(b) Common Trust Securities. 128,351 Common Trust Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of four million, fifty-one thousand, seventy-eight dollars ($4,051,078)
and a liquidation amount with respect to the assets of the Trust of $31.5625 per
security, are hereby designated for the purposes of identification only as
"6.86% Common Trust Securities" (the "Common Trust Securities"). The
certificates evidencing the Common Trust Securities shall be substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions.
(a) Distributions payable on each Security will initially be fixed at
a rate per annum of 6.86% (the "Distribution Rate") of the stated liquidation
amount of $31.5625 per Security (the "Liquidation Amount"). On and after the
Market Rate Increase Date (as defined in the Indenture) if the Rate Increase
Agent (as defined in the Indenture), increases the Initial Interest Rate (as
defined in the Indenture) to the Market Increase Rate (as defined in the
Indenture), Distributions will be fixed at a rate per annum of the Liquidation
Amount equal to the Market Increase Rate. The Distribution Rate as in effect at
any applicable time is hereinafter referred to as the "Coupon Rate." Except as
set forth below in respect of an Extension Period, Distributions in arrears for
more than one quarterly period will bear additional distributions thereon
compounded quarterly at the rate of 6.86% per annum plus, for the period after
the Market Rate Increase Date, the amount (if any), by which the Distribution
Rate shall have been increased (together, the "Deferral Rate") (to the extent
permitted by applicable law). The term "Distributions," as used herein, includes
distributions of any such interest unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent the Property Trustee has funds on
hand legally available therefor.
(b) Distributions on the Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from July 27, 1998, and will be payable
quarterly in arrears on January 27, April 27, July 27, and October 27, 1998 of
each year, commencing on October 27, 1998 (each, a "Distribution Date"), except
as otherwise described below. Distributions will be computed on the basis of a
360-day year consisting of twelve 30-day months. As long as no Event of Default
has occurred and is continuing under the Indenture, the Debenture Issuer has the
right under the Indenture to elect to defer payments of interest by extending
the interest payment period at any time and from time to time on the Debentures
(each an "Extension Period"), during which Extension Period no interest shall be
due and payable on the Debentures, provided that no Extension Period shall end
on a date other than an Interest Payment Date for the Debentures or extend
beyond the Maturity Date of the Debentures. During any such Extension Period,
the Debenture Issuer may not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Debenture Issuer's capital stock (which includes common and preferred
stock), (ii) make any payment of principal of or premium, if any, or interest on
or repay, repurchase or redeem any debt securities of the Debenture Issuer that
rank pari passu with or junior in right of payment to the Debentures or (iii)
make any guarantee payments with respect to any guarantee by the Debenture
Issuer of any securities of any subsidiary of the Debenture Issuer if such
guarantee ranks pari passu with or junior in right of payment to the Debentures
(other than, in the case of clauses (i), (ii) and (iii), (A) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Debenture Issuer, (B) any declaration of
a dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (C) payments under the QUIPS
Guarantee, (D) as a result of a reclassification of the Debenture Issuer's
capital stock solely into shares of one or more classes or series of the
Debenture Issuer's capital stock or the exchange or conversion of one class or
series of the Debenture Issuer's capital stock for another class or series of
the Debenture Issuer's capital stock, (E) the purchase of fractional interests
in shares of the Debenture Issuer's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, and (F) purchases of common stock of the Debenture Issuer in
connection with the satisfaction by the Debenture Issuer of its obligations
(including purchases related to the issuance of such common stock or rights)
under any of the Debenture Issuer's benefit plans for its and its subsidiaries'
directors, officers or employees or any of the Debenture Issuer's dividend
reinvestment plans). As a consequence of such deferral, Distributions will also
be deferred. Despite such deferral, Distributions will continue to accumulate
with additional Distributions thereon (to the extent permitted by applicable law
but not at a rate greater than the rate at which interest is then accruing on
the Debentures) at the Deferral Rate compounded quarterly during any such
Extension Period. Prior to the termination of any such Extension Period, the
Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period may not extend beyond
the Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates which shall be one Business Day prior to the relevant Distribution
Date, unless the QUIPS are issued in certificated form, in which case the
regular record date for such Distributions shall be the first day of the month
in which the relevant Distribution Date falls, which Distribution Dates
correspond to the interest payment dates on the Debentures. The relevant record
dates for the Common Trust Securities shall be the same as the record dates for
the QUIPS. Distributions payable on any Securities that are not punctually paid
on any Distribution Date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures, will cease to be payable to the Holder on
the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day (and so long as such
payment is made on such next succeeding day, without any interest or other
payment in respect of any such delay), except 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 such payment was originally payable.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust or the Sponsor otherwise
gives notice of its election to dissolve the Trust pursuant to Section
8.1(a)(iii) of the Declaration, the Trust shall be liquidated by the
Administrators as expeditiously as the Administrators determine to be possible
by distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the Holders of the Securities a Like Amount (as
defined below) of the Debentures (the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having an aggregate Liquidation Amount equal to the
principal amount of Debentures to be paid in accordance with their terms and
(ii) with respect to a distribution of Debentures upon the liquidation of the
Trust, Debentures having a principal amount equal to the aggregate Liquidation
Amount of the Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets on hand legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a Pro
Rata basis, except that if a Event of Default has occurred and is continuing,
the QUIPS shall have priority over the Common Trust Securities.
4. Redemption and Distribution.
(a) The QUIPS will be subject to mandatory redemption on the Maturity
Date of the Debentures out of the proceeds of the repayment of the Debentures at
Maturity. Upon the repayment of the Debentures at maturity, the proceeds from
such repayment shall be simultaneously applied by the Property Trustee to redeem
a Like Amount of the Securities at a redemption price equal to the principal of
and accrued and unpaid interest on the Debentures as of the Maturity Date
thereof (the "Final Redemption Price").
(b) On and from the date fixed by the Administrators for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee), as the Holder of the
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
certificates representing Securities not held by the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee) will be deemed to
represent beneficial interests in a Like Amount of Debentures and bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Securities until such certificates are presented to the
registrar for the Debentures for transfer or reissue, whereupon the Debenture
Issuer will issue to such Holder, and the Debenture Trustee will authenticate, a
certificate representing such Debentures.
(c) The procedure with respect to redemptions or distributions of
Debentures shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder to be redeemed
or exchanged not fewer than 30 nor more than 60 days before the date fixed
for redemption or exchange thereof which, in the case of a redemption, will
be the Maturity Date of the Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(c)(i), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class
mail, postage prepaid, to Holders. Each Redemption/Distribution Notice
shall be addressed to the Holders of Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, then to the extent funds are legally
available, (A) with respect to QUIPS issued in book-entry form, by 12:00
noon, New York City time, on the Maturity Date, provided that the Debenture
Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the maturity of the Debentures by 10:00 a.m., New York City
time, on the Maturity Date, the Property Trustee will deposit, or cause the
Paying Agent to Deposit, irrevocably with the Clearing Agency or its
nominee (or successor Clearing Agency or its nominee) funds sufficient to
pay the Final Redemption Price and will give the Clearing Agency
irrevocable instructions and authority to pay the Final Redemption Price to
the Clearing Agency Participants, and (B) with respect to QUIPS issued in
certificated form and Common Trust Securities, provided that the Debenture
Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the maturity of the Debentures, the Property Trustee will
give irrevocable instructions and authority to the Paying Agent and will
irrevocably deposit with the Paying Agent funds sufficient to pay the Final
Redemption Price to the Holders thereof. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, if
applicable, then immediately prior to the close of business on the date of
such deposit distributions will cease to accumulate on the Securities and
all rights of Holders will cease, except the right of the Holders of such
Securities to receive the Final Redemption Price, but without interest on
such Final Redemption Price, and such Securities shall cease to be
outstanding.
(iii) Payment of accumulated and unpaid Distributions on the
Maturity Date of the Debentures will be subject to the rights of Holders of
Securities on the close of business on a regular record date in respect of
a Distribution Date occurring on or prior to such Maturity Date.
If the Maturity Date of the Debentures is not a Business Day, then
payment of the Final Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and so long as such payment
is made on the next succeeding Business Day, without any interest or other
payment in respect of any such delay), with the same force and effect as if
made on such date fixed for redemption. If payment of the Final Redemption
Price is improperly withheld or refused and not paid either by the Trust or
by the Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accumulate at the Coupon
Rate on the Final Redemption Price from the Maturity Date to the actual
date of payment.
(iv) Redemption/Distribution Notices shall be sent by the Property
Trustee on behalf of the Trust to (A) in respect of the QUIPS, the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee) if
the Global Certificates have been issued or, if Definitive QUIPS have been
issued, to the Holder thereof, and (B) in respect of the Common Trust
Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States Federal securities laws and banking laws),
provided the acquiror is not the Holder of the Common Trust Securities or
the obligor under the Indenture, the Sponsor or any of its subsidiaries may
at any time and from time to time purchase outstanding QUIPS by tender, in
the open market or by private agreement.
5. Voting Rights - QUIPS.
(a) Except as provided under Sections 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the QUIPS will have no
voting rights. The Administrators are required to call a meeting of the Holders
of the QUIPS if directed to do so by the Holders of at least 10% in liquidation
amount of the QUIPS.
(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 exercising any
trust or power conferred on such Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.07 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures 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 a Majority in liquidation amount
of all outstanding QUIPS; 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 Trustees without the prior
approval of each Holder of the QUIPS. The Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the QUIPS
except by subsequent vote of such Holders. The Property Trustee shall notify
each Holder of Securities of any notice of default with respect to the
Debentures. In addition to obtaining the foregoing approvals of such Holders
prior to taking any of the foregoing actions, the Property Trustee shall obtain
an Opinion of Counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes or as other than a grantor trust on account
of such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or premium, if any, or interest on the Debentures on the due
date therefor (after giving effect to any Extension Period), then a Holder of
QUIPS may directly institute a proceeding for enforcement of payment to such
Holder of the principal of or premium, if any, or interest on a Like Amount of
Debentures (a "Direct Action") on or after the respective due date specified in
the Debentures. In connection with such Direct Action, the rights of the Common
Trust Securities Holder will be subrogated to the rights of such Holder of QUIPS
to the extent of any payment made by the Debenture Issuer to such Holder of
QUIPS in such Direct Action, PROVIDED, HOWEVER, that no such subrogation right
may be exercised so long as an Event of Default has occurred and is continuing.
The Holders of QUIPS will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of QUIPS may be given at a
separate meeting of such Holders of QUIPS convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
Holders of QUIPS are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
record of QUIPS. Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the QUIPS will be required for
the Trust to redeem and cancel QUIPS or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of QUIPS are entitled to vote or consent
under any of the circumstances described above, any of the QUIPS that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
6. Voting Rights - Common Trust Securities.
(a) Except as provided under Sections 6(b), and 7, in the Business
Trust Act, and as otherwise required by law and the Declaration, the Holders of
the Common Trust Securities will have no voting rights.
(b) Unless an Event of Default under the Declaration shall have
occurred and be continuing, any Trustee may be removed at any time by the holder
of the Common Trust Securities. If an Event of Default under the Declaration has
occurred and is continuing, the Property Trustee and the Delaware Trustee may be
removed at such time by the Holders of a Majority in liquidation amount of the
outstanding QUIPS. In no event will the Holders of the QUIPS have the right to
vote to appoint, remove or replace the Administrators, which voting rights are
vested exclusively in the Sponsor as the holder of the Common Trust Securities.
No resignation or removal of a Trustee and no appointment of a successor trustee
shall be effective until the acceptance of appointment by the successor trustee
in accordance with the provisions of the Declaration.
No vote or consent of the Holders of the Common Trust Securities will
be required for the Trust to redeem and cancel Common Trust Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration.
(a) The provisions set forth under Section 12.1 of the Declaration
and this Section 7 shall govern any amendments to the Declaration.
(b) Notwithstanding any provisions of the Declaration and the
provisions of Section 3.16(b) of the Trust Indenture Act, the right of any
Holder of QUIPS to receive payment of distributions and other payments upon
redemption, repurchase or otherwise, on or after their respective due dates, or
to institute a suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder. For the protection and enforcement of the foregoing provision, each and
every Holder of QUIPS shall be entitled to such relief as can be given either at
law or equity.
8. Right to Exercise Put Options.
Each holder of QUIPS will have the right to require the Trust to
distribute Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of such QUIPS to the Put Agent (as defined in the
Indenture), on the Stock Purchase Date (as defined in the Indenture), in
exchange for such QUIPS, in connection with the concurrent exercise by the Put
Agent on behalf of each such holder of the Debenture Put Option (as defined in
the Indenture) related thereto.
A holder of QUIPS may exercise the right referred to above by
presenting and surrendering the certificate evidencing such QUIPS, at the
offices of the Property Trustee, with the form of "Notice to Require Exercise of
Junior Subordinated Debenture Put Option" on the reverse side of the certificate
completed and executed as indicated, by 10:00 a.m., New York City time, on the
Stock Purchase Date. If such right is properly exercised, the applicable
Debentures will be distributed to the Put Agent, who shall be the Collateral
Agent, and the Put Agent will then exercise the Put Option related thereto on
behalf of the holder. Any cash received on the exercise of such option must be
used to settle any purchase contracts secured by the Debentures.
9. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the QUIPS
pro rata according to the aggregate liquidation amount of QUIPS held by the
relevant Holder relative to the aggregate liquidation amount of all QUIPS
outstanding, and only after satisfaction of all amounts owed to the Holders of
the QUIPS (as described in Section 10), to each Holder of Common Trust
Securities pro rata according to the aggregate liquidation amount of Common
Trust Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Common Trust Securities outstanding.
10. Ranking; Subordination of Common Trust Securities.
(a) The QUIPS rank pari passu with the Common Trust Securities and
payment of Distributions on, and the Final Redemption Price of, the QUIPS and
the Common Trust Securities, as applicable, shall be made pro rata based on the
liquidation amount of the QUIPS and Common Trust Securities; provided, however,
that if on any Distribution Date or Maturity Date an Event of Default under the
Declaration (solely as the result of an event described in clauses (1), (2) or
(3) of the definition of Event of Default in the Indenture) shall have occurred
and be continuing, no payment of any Distribution, or Final Redemption Price of,
any of the Common Trust Securities, and no other payment on account of the
redemption, liquidation or other acquisition of the Common Trust Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions on all of the outstanding QUIPS for all distribution periods
terminating on or prior thereto or, in the case of the Maturity Date, the full
amount of the Final Redemption Price therefor, 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 on, or Final Redemption Price
of, the QUIPS then due and payable.
In the case of any Event of Default, the holder of the Common Trust
Securities will be deemed to have waived any right to act with respect to such
Event of Default until the effect of such Event of Default shall have been
cured, waived or otherwise eliminated. Until any such Event of Default has been
so cured, waived or otherwise eliminated, the Property Trustee shall act solely
on behalf of the Holders of the QUIPS, and only the Holders of the QUIPS will
have the right to direct the Property Trustee to act on their behalf.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of QUIPS and Common Trust Securities, by the acceptance
thereof, agrees to the provisions of the QUIPS Guarantee and the Common Trust
Securities Guarantee, respectively, including the subordination provisions
therein and to the provisions of the Indenture and the Declaration.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or similar
rights to subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Indenture, the
QUIPS Guarantee or the Common Trust Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge on written request to the Sponsor at its principal place of business.
<PAGE>
EXHIBIT A-1
FORM OF QUARTERLY INCOME PREFERRED SECURITIES
FORM OF FACE OF SECURITY
THIS QUARTERLY INCOME PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE
CLEARING AGENCY. THIS QUIPS IS EXCHANGEABLE FOR QUIPS REGISTERED IN THE NAME OF
A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS QUIPS (OTHER
THAN A TRANSFER OF THIS QUIPS AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF
THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING
AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS QUIPS IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), A NEW YORK
CORPORATION, TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY QUIPS ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), 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 Quarterly Income Preferred Securities
CUSIP NO. 03072Y201 4,150,000
Certificate Evidencing Quarterly Income Preferred Securities
of
AmerUs Capital II
6.86% Quarterly Income Preferred Securities (liquidation amount $31.5625 per
Quarterly Income Preferred Security)
AmerUs Capital II, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that The Chase Manhattan Bank,
as Collateral Agent (the "Holder") is the registered owner of 4,150,000
securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust designated the 6.86% Quarterly Income Preferred
Securities (liquidation amount $31.5625 per Quarterly Income Preferred Security)
(the "QUIPS"). Subject to the terms of the Declaration (as defined below), the
QUIPS 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. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the QUIPS represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of July 27, 1998, as the
same may be amended from time to time (the "Declaration"), including the
designation of the terms of the QUIPS as set forth in Annex I to the
Declaration. Capitalized terms used but not defined herein shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration, the QUIPS Guarantee and the Indenture to a Holder without charge
upon written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the QUIPS Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Trust as a grantor trust, the Debentures as
indebtedness and the QUIPS as evidence of indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this 27th
day of July, 1998.
AMERUS CAPITAL II
By:----------------------------
Name:
Title: Administrator
<PAGE>
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Quarterly Income Preferred Securities referred to
in the within-mentioned Declaration.
Dated: July 27, 1998
FIRST UNION NATIONAL BANK, not in its
individual capacity, but solely as Property
Trustee
By:---------------------------------
Authorized Signatory
<PAGE>
FORM OF REVERSE OF SECURITY
Distributions payable on each QUIPS will initially be fixed at a rate
per annum of 6.86% (the "Distribution Rate") of the stated liquidation amount of
$31.5625 per QUIPS (the "Liquidation Amount"). On and after the Market Rate
Increase Date (as defined in the Indenture) if the Rate Increase Agent (as
defined in the Indenture), increases the Initial Interest Rate (as defined in
the Indenture) to the Market Increase Rate (as defined in the Indenture),
Distributions will be fixed at a rate per annum of the Liquidation Amount equal
to the Market Increase Rate. The Distribution Rate as in effect at any
applicable time is hereinafter referred to as the "Coupon Rate." Distributions
in arrears for more than one quarterly period will bear interest thereon
compounded quarterly at the rate of 6.86% per annum plus, for the period after
the Market Rate Increase Date, the amount (if any), by which the Distribution
Rate shall have been increased (together, the "Deferral Rate") (to the extent
permitted by applicable law). The term "Distributions", as used herein,
includes such cash distributions and any such interest unless otherwise stated.
A Distribution is payable only to the extent that payments are made in respect
of the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
Distributions on the QUIPS will be cumulative, will accumulate from
the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from July 27, 1998 and will be payable quarterly
in arrears, on January 27, April 27, July 27, and October 27 of each year,
commencing on October 27, 1998, except as otherwise described below.
Distributions will be computed on the basis of a 360-day year consisting of
twelve 30-day months. As long as no Event of Default has occurred and is
continuing under the Indenture, the Debenture Issuer has the right under the
Indenture to elect to defer payments of interest by extending the interest
payment period at any time and from time to time on the Debentures (each an
"Extension Period"), provided that no Extension Period shall end on a date other
than an Interest Payment Date for the Debentures or extend beyond the Maturity
Date of the Debentures. As a consequence of such deferral, Distributions will
also be deferred. Despite such deferral, quarterly Distributions will continue
to accumulate with interest thereon (to the extent permitted by applicable law,
but not at a rate exceeding the rate of interest then accruing on the
Debentures) at the Deferred Rate compounded quarterly during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further defer payments of interest by further extending such
Extension Period; provided that such Extension Period may not extend beyond the
Maturity Date of the Debentures. Payments of accumulated Distributions will be
payable to Holders as they appear on the books and records of the Trust on the
first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
Subject to the conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and, after satisfaction of liabilities to creditors of
the Trust as required by applicable law, cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust.
The QUIPS will be subject to mandatory redemption on the Maturity Date
of the Debentures as provided in the Declaration.
The QUIPS and the rights of the Holders shall be governed by and
interpreted in accordance with the laws of the State of Delaware and all rights
and remedies shall be governed by such laws without regard to principles of
conflict of laws.
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this 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 Security 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 Security)
Signature Guarantee(1): -------------------------------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
<PAGE>
NOTICE TO REQUIRE EXERCISE OF JUNIOR SUBORDINATED
DEBENTURE PUT OPTION
The undersigned holder of this Security hereby irrevocably exercises the right
to require the Trust to distribute to the Put Agent Debentures having an
aggregate principal amount equal to the Liquidation Amount of the number of
QUIPS listed below (which number does not exceed the number evidenced hereby) in
exchange for such number of QUIPS, on the Stock Purchase Date in connection with
the concurrent exercise by the Put Agent on behalf of the holder of this
Security of the Debenture Put Option related hereto on such date. Pursuant to
the aforementioned exercise of the right to require the Trust to distribute to
the Put Agent Debentures in exchange for such number of QUIPS, the undersigned
hereby directs the Property Trustee to take any actions necessary to effect the
exchange of such number of QUIPS for such principal amount of Debentures. Any
cash received on the exercise of such option must be used to settle any purchase
contracts secured by the Debentures.
Date: ----------------------------
Number of QUIPS (not to exceed number of QUIPS evidenced hereby)
Signature: -------------------------------
(Sign exactly as your name appears on the other side of this Security)
Please Print or Type Name and Address,
Including Zip Code, and Social Security
or Other Identifying Number
- ----------------------------------
- ----------------------------------
- ----------------------------------
Signature Guarantee(1): ----------------------------------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
<PAGE>
EXHIBIT A-2
FORM OF COMMON TRUST SECURITY CERTIFICATE
THIS COMMON TRUST SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
EFFECTIVE REGISTRATION STATEMENT.
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
(128,351)
Certificate Number 1 Number of Common Trust Securities
Certificate Evidencing Common Trust Securities
of
AmerUs Capital II
6.86% Common Trust Securities (liquidation amount $31.5625 per Common Trust
Security)
AmerUs Capital II, a statutory business trust created 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 trust securities of the
Trust representing undivided beneficial interests in the assets of the Trust
designated the 6.86% Common Trust Securities (liquidation amount $31.5625 per
Common Trust Security) (the "Common Trust Securities"). The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Trust Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated Declaration of
Trust of the Trust dated as of July 27, 1998 as the same may be amended from
time to time (the "Declaration"), including the designation of the terms of the
Common Trust Securities as set forth in Annex I to the Declaration. Capitalized
terms used but not defined herein shall have the meaning given them in the
Declaration.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Common Trust Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Common Trust
Securities as evidence of indirect beneficial ownership in the Debentures.
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this 27th
day of July 1998.
AMERUS CAPITAL II
----------------------------------
Name:
Title: Administrator
<PAGE>
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Trust Security will initially be
fixed at a rate per annum of 6.86% (the "Distribution Rate") of the stated
liquidation amount of $31.5625 per Common Trust Security (the "Liquidation
Amount"). On and after the Market Rate Increase Date (as defined in the
Indenture) if the Rate Increase Agent (as defined in the Indenture), increases
the Initial Interest Rate (as defined in the Indenture) to the Market Increase
Rate (as defined in the Indenture), Distributions will be fixed at a rate per
annum of the Liquidation Amount equal to the Market Increase Rate. The
Distribution Rate as in effect at any applicable time is hereinafter referred to
as the "Coupon Rate." Distributions in arrears for more than one quarterly
period will bear interest thereon compounded quarterly at the rate of 6.86% per
annum plus, for the period after the Market Rate Increase Date, the amount (if
any), by which the Distribution Rate shall have been increased (together, the
"Deferral Rate") (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes such cash distributions and any such
interest unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds available therefor.
Distributions on the Common Trust Securities will be cumulative, will
accrue from the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from July 27, 1998 and will be payable quarterly
in arrears, on January 27, April 27, July 27, and October 27 of each year,
commencing on October 27, 1998, except as otherwise described below.
Distributions will be computed on the basis of a 360-day year consisting of
twelve 30-day months. As long as no Event of Default has occurred and is
continuing under the Indenture, the Debenture Issuer has the right under the
Indenture to elect to defer payments of interest by extending the interest
payment period at any time and from time to time on the Debentures (each an
"Extension Period"), provided that no Extension Period shall end on a date other
than an Interest Payment Date for Debentures or extend beyond the Maturity Date
of the Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, Distributions will continue to accumulate with
interest thereon (to the extent permitted by applicable law, but not at a rate
exceeding the rate of interest then accruing on the Debentures) at the Deferral
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period may not extend beyond the Maturity Date of the Debentures.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
Subject to the conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time liquidate the Trust and, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust.
The Common Trust Securities will be subject to mandatory redemption on
the Maturity Date of the Debentures, as provided in the Declaration.
The Common Trust Securities and the rights of the holders thereof
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
----------------------------------
Exhibit 4.7
Common Trust Securities Guarantee Agreement
By
AmerUs Life Holdings, Inc.
(as Guarantor)
In Favor of
The Holders of the Common Trust Securities of AmerUs Capital II
dated as of
July 27, 1998
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . .2
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II
GUARANTEE. . . . . . . . . . . . .4
SECTION 2.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.02. Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . .4
SECTION 2.03. Obligations Not Affected. . . . . . . . . . . . . . . . . . . . .4
SECTION 2.04. Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.05. Guarantee of Payment. . . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.06. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.07. Independent Obligations . . . . . . . . . . . . . . . . . . . . .5
ARTICLE III
COVENANTS AND SUBORDINATION. . . .6
SECTION 3.01. Limitation of Transactions. . . . . . . . . . . . . . . . . . . .6
SECTION 3.02. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE IV
TERMINATION . . . . . . . . . . . . . . . . .7
SECTION 4.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE V
MISCELLANEOUS . . . . . . . . . . .7
SECTION 5.01. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . .7
SECTION 5.02. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 5.03. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 5.04. Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 5.05. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . .8
SECTION 5.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . .9
SECTION 5.07. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . .9
<PAGE>
Common Trust Securities Guarantee Agreement
This Common Trust Securities Guarantee Agreement, dated as of
July 27, 1998, is executed and delivered by AmerUs Life Holdings, Inc., an Iowa
corporation (the "Guarantor") for the benefit of the Holders (as defined herein)
from time to time of the Common Trust Securities (as defined herein) of AmerUs
Capital II, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of the date hereof, 1998, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders, from time to
time, of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing up to $4,622,486 aggregate liquidation amount of its 6.86% Common
Trust Securities (the "Common Trust Securities") and up to $149,946,163
aggregate liquidation amount of its 6.86% Capital Securities, (liquidation
amount $31.5625 per Capital Security) (the "Capital Securities" and together
with the Common Trust Securities, the "Trust Securities"), each representing
ownership interests in the assets of the Issuer and having the terms set forth
in the Declaration;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined herein) of
the Guarantor which will be deposited with First Union National Bank, as
Property Trustee under the Declaration, as trust assets;
WHEREAS, as an incentive for the Holders to purchase Common Trust
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; and
WHEREAS, the Guarantor is executing and delivering a Guarantee
Agreement (the "QUIPS Guarantee Agreement") with substantially identical terms
to this Common Trust Securities Guarantee, for the benefit of the holders of the
Capital Securities, except that if a Guarantee Event of Default (as defined in
the QUIPS Guarantee Agreement) has occurred and is continuing, the rights of the
holders of the Common Trust Securities to receive the Guarantee Payments under
this Common Trust Securities Guarantee are subordinated, to the extent and in
the manner set forth in this Common Trust Securities Guarantee, to the rights of
Holders to receive Guarantee Payments under the QUIPS Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Trust Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Common Trust
Securities Guarantee Agreement for the benefit of the Holders from time to time
of the Common Trust Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Common Trust Securities
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 Declaration as in effect on the date hereof unless
otherwise indicated.
"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
Common Trust Securities Guarantee Agreement.
"Common Trust Securities" has the meaning specified in the recitals to
this Common Trust Securities Guarantee Agreement.
"Common Trust Securities Guarantee Agreement" means this Common Trust
Securities Guarantee Agreement, dated as of the date hereof by AmerUs Life
Holdings, Inc. in favor of the Holders.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the 6.86% Junior Subordinated Deferrable Interest
Debentures due July 27, 2003 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Declaration" has the meaning specified in the recitals to this Common
Trust Securities Guarantee Agreement.
"Distributions" shall have the same meaning as indicated in the
Declaration.
"Final Redemption Price" means the final redemption price of the
Common Trust Securities, including all accumulated and unpaid Distributions to
the date of redemption.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Common Trust 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 Declaration) required to
be paid on the Common Trust Securities, to the extent the Issuer shall have
funds on hand legally available therefor at such time, and (ii) the Final
Redemption Price with respect to the Common Trust Securities outstanding on the
Maturity Date of the Debentures (as defined in the Indenture) to the extent the
Issuer shall have funds on hand legally available therefor at such time. If a
Guarantee Event of Default has occurred and is continuing, no Guarantee Payments
under the Common Trust Securities Guarantee with respect to the Common Trust
Securities or any guarantee payment under any Other Common Trust Securities
Guarantees shall be made until the Holders shall be paid in full the Guarantee
Payments to which they are entitled under the QUIPS Guarantee Agreement.
"Guarantor" has the meaning specified in the recitals to this Common
Trust Securities Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Trust Securities that is deemed to be a holder of
any Common Trust Securities.
"Indenture" means the Junior Subordinated Indenture dated as of the
date hereof, among the Guarantor and First Union National Bank, as trustee, as
the same may be amended or supplemented from time to time in accordance with the
terms hereof, pursuant to which the Debentures are to be issued to the Property
Trustee.
"Majority in liquidation amount of the Common Securities" means Common
Trust Securities representing more than 50% of the liquidation amount of all
then outstanding Common Trust Securities.
"Other Debentures" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to trusts established or to be
established by the Guarantor, in each case similar to the issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to Common Trust Securities similar to the Common Trust Securities issued
by other trusts to be established by the Guarantor, in each case similar to the
Issuer.
"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.
"QUIPS Guarantee Agreement" has the meaning specified in the recitals
to this Common Trust Securities Guarantee Agreement.
"Trust" or "Issuer" means AmerUs Capital II, a Delaware statutory
business trust.
"Trust Securities" has the meaning specified in the recitals to this
Common Trust Securities Guarantee Agreement.
ARTICLE II
GUARANTEE
SECTION 2.01. 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 2.02. Waiver of Notice and Demand. The Guarantor hereby
waives notice of acceptance of the Common Trust Securities 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 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 2.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Common Trust Securities
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 Common Trust
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, Final Redemption Price or any other sums
payable under the terms of the Common Trust Securities or the extension of
time for the performance of any other obligation under, arising out of, or
in connection with, the Common Trust Securities (other than an extension of
time for the payment of Distributions that results from the extension of
any interest payment period on the Debentures permitted by the Indenture);
(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 Common Trust
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 Common Trust
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
2.03 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 2.04. Rights of Holders. The Guarantor expressly acknowl-
edges that any Holder of Common Trust Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Common Trust Securities Guarantee, without first instituting a legal proceeding
against the Issuer or any other Person.
SECTION 2.05. Guarantee of Payment. This Common Trust Securities
Guarantee Agreement creates a guarantee of payment and not a guarantee of
collection. This Common Trust Securities 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 thereof as provided in the Declaration.
SECTION 2.06. 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 Common Trust Securities Guarantee
Agreement and shall have the right to waive payment by the Issuer pursuant to
Section 2.01; 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
Common Trust Securities Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Common Trust Securities
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 2.07. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Common Trust Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Common Trust Securities Guarantee Agreement notwithstanding
the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 2.03 hereof.
ARTICLE III
COVENANTS AND SUBORDINATION
SECTION 3.01. Limitation of Transactions. So long as any Common
Trust Securities remain outstanding, the Guarantor shall not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Guarantor (including any Other Debentures) that rank pari
passu with or junior in right of payment to the Debentures or (iii) make any
guarantee payments with respect to any guarantee by the Guarantor of any
securities of any subsidiary of the Guarantor (including Other Guarantees) if
such guarantee ranks pari passu or junior in right of payment to the Debentures
(other than in the case of clauses (i), (ii) and (iii), (a) dividends or
distributions in shares of, or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the QUIPS
Guarantee, (d) as a result of a reclassification of the Guarantor's capital
stock solely into shares of one or more classes or series of the Guarantor's
capital stock or the exchange or the conversion of one class or series of the
Guarantor's capital stock for another class or series of the Guarantor's capital
stock, (e) the purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged and (f) purchases of the
Guarantor's common stock in connection with the satisfaction by the Guarantor of
its obligations (including purchases related to the issuance of such common
stock or rights), under any of the Guarantor's benefit plans for its and its
subsidiaries' directors, officers or employees or any of the Guarantor's
dividend reinvestment plans) if at such time (x) a Guarantee Event of Default
(as defined in the QUIPS Guarantee Agreement) or an Event of Default (as defined
in the Indenture) shall have occurred and be continuing, (y) if such Debentures
are held by the Property Trustee, the Guarantor shall be in default with respect
to its payment of any obligations under the QUIPS Guarantee or (z) the Guarantor
shall have given notice of its election of the exercise of its right to extend
the interest payment period pursuant to Section 3.01(b)(6) of the Indenture and
any such extension shall have commenced and not yet terminated.
SECTION 3.02. Subordination. (a) This Common Trust Securities
Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture), to the same extent and in the same
manner that the Debentures are subordinated to all present and future Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XII of the Indenture shall apply to the obligations of the Guarantor
under this Common Trust Securities Guarantee as if (x) such Article XII were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XII, and pari passu with the Debentures
and Other Debentures.
(b) If an Event of Default has occurred and is continuing, the rights
of Holders of the Common Trust Securities of the Issuer to receive payments
under this Common Trust Securities Guarantee are subordinated to the rights of
holders of QUIPS to receive Guarantee Payments.
ARTICLE IV
TERMINATION
SECTION 4.01. Termination. This Common Trust Securities Guarantee
shall terminate and be of no further force and effect (i) upon full payment of
the Final Redemption Price of all Common Trust Securities, (ii) at such other
time when there are no longer any QUIPS outstanding (iii) at any such other time
when there are no longer any Common Trust Securities outstanding.
Notwithstanding the foregoing, this Common Trust Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder of the Common Trust Securities must restore payment of any sums
paid under the Common Trust Securities or under this Common Trust Securities
Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Successors and Assigns. All guarantees and agreements
contained in this Common Trust Securities 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 Common Trust 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 Seven 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 5.02. 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 Common Trust Securities
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 Common
Trust Securities. The provisions of the Declaration concerning meetings of
Holders shall apply to the giving of such approval.
SECTION 5.03. 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 Holders:
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
Holders:
AmerUs Capital II
c/o AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa 50309-2407
Facsimile No: (515) 283-3402
Attention: Administrative Trustee
with copy to:
First Union National Bank
230 Tyron Street, 9th Floor
Charlotte, NC 28288-1153
Facsimile No: (704) 383-7316
Attention: Corporate Trust Administration
(c) 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 5.04. Benefit. This Common Trust Securities Guarantee
Agreement is solely for the benefit of the Holders, and is not separately
transferable from the Common Trust Securities.
SECTION 5.05. Interpretation. In this Common Trust Securities
Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Common Trust Securities 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 Common Trust Securities Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Common Trust Securities Guarantee
Agreement" or "this Common Trust Securities Guarantee Agreement" are to
this Common Trust Securities Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Common Trust Securities Guarantee
Agreement to Articles and Sections are to Articles and Sections of this
Common Trust Securities Guarantee Agreement unless otherwise specified;
(e) a reference to the singular includes the plural and vice versa;
and
(f) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 5.06. Governing Law. THIS COMMON TRUST SECURITIES GUARANTEE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS
PROVISIONS.
SECTION 5.07. Counterparts. This Common Trust Securities Guarantee
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
<PAGE>
THIS Common Trust Securities Guarantee Agreement is executed as of the
day and year first above written.
AMERUS LIFE HOLDINGS, INC.
/s/ Roger K. Brooks
By: --------------------------------
Name: Roger K. Brooks
Title: Chairman, President and
Chief Executive Officer
Exhibit 4.8
QUIPS Guarantee Agreement
Between
AmerUs Life Holdings, Inc.
(as Guarantor)
and
First Union National Bank
(as Trustee)
dated as of
July 27, 1998
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS . . . . . . . . . . . .4
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE II
TRUST INDENTURE ACT. . . . . . . .7
SECTION 2.01. Trust Indenture Act; Application. . . . . . . . . . . . . . . . .7
SECTION 2.02. Lists of Holders. . . . . . . . . . . . . . . . . . . . . . . . .7
SECTION 2.03. Reports by the QUIPS Guarantee Agreement Trustee. . . . . . . . .8
SECTION 2.04. Periodic Reports to QUIPS Guarantee Agreement Trustee . . . . . .8
SECTION 2.05. Evidence of Compliance with Conditions Precedent. . . . . . . . .8
SECTION 2.06. Guarantee Events of Default; Waiver . . . . . . . . . . . . . . .8
SECTION 2.07. Guarantee Event of Default; Notice. . . . . . . . . . . . . . . .8
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE III
POWERS, DUTIES AND RIGHTS OF QUIPS GUARANTEE AGREEMENT TRUSTEE9
SECTION 3.01. Powers and Duties of the QUIPS Guarantee Agreement Trustee. . . .9
SECTION 3.02. Certain Rights of QUIPS Guarantee Agreement Trustee . . . . . . 11
SECTION 3.03. Not Responsible for Recitals or Issuance of QUIPS
Guarantee Agreement. . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV
QUIPS GUARANTEE AGREEMENT TRUSTEE14
SECTION 4.01. QUIPS Guarantee Agreement Trustee; Eligibility. . . . . . . . . 14
SECTION 4.02. Appointment, Removal and Resignation of QUIPS Guarantee Agreement
Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V
GUARANTEE . . . . . . . . . . . . 15
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . 15
SECTION 5.03. Obligations Not Affected. . . . . . . . . . . . . . . . . . . . 16
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.05. Guarantee of Payment. . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.07. Independent Obligations . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
COVENANTS AND SUBORDINATION . . . . . . . . . . . . 17
SECTION 6.01. Limitation of Transactions. . . . . . . . . . . . . . . . . . . 18
SECTION 6.02. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII
TERMINATION. . . . . . . . . . . 19
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII
COMPENSATION AND EXPENSES OFQUIPS GUARANTEE AGREEMENT TRUSTEE19
SECTION 8.01. Compensation and Expenses of QUIPS Guarantee Agreement Trustee. 19
ARTICLE IX
INDEMNIFICATION. . . . . . . . . 20
SECTION 9.01. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.02. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE X
MISCELLANEOUS . . . . . . . . . . 21
SECTION 10.01. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.02. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.03. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 10.04. Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 10.05. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 10.06. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 10.07. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 23
<PAGE>
QUIPS Guarantee Agreement
This QUIPS Guarantee Agreement, dated as of July 27, 1998, is
executed and delivered by AmerUs Life Holdings, Inc., an Iowa corporation (the
"Guarantor"), and First Union National Bank, a national banking corporation, as
trustee, for the benefit of the Holders (as defined herein) from time to time of
the Capital Securities (as defined herein) of AmerUs Capital II, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of the date hereof among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders, from time to time, of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing up to $149,461,063 aggregate liquidation amount of its 6.86% Capital
Securities, (liquidation amount $31.5625 per Capital Security) (the "Capital
Securities") and up to $4,622,486 aggregate liquidation amount of its 6.86%
Common Securities (the "Common Securities" and together with the Capital
Securities, the "Trust Securities"), each representing ownership interests in
the assets of the Issuer and having the terms set forth in the Declaration;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined herein) of
the Guarantor which will be deposited with First Union National Bank, as
Property Trustee under the Declaration, as trust assets;
WHEREAS, as an 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; and
WHEREAS, the Guarantor is executing and delivering a Guarantee
Agreement (the "Common Trust Securities Guarantee") with substantially identical
terms to this QUIPS Guarantee Agreement, for the benefit of the holders of the
Common Securities, except that if a Guarantee Event of Default (as defined
herein) has occurred and is continuing, the rights of the holders of the Common
Securities to receive the Guarantee Payments under the Common Trust Securities
Guarantee are subordinated, to the extent and in the manner set forth in the
Common Trust Securities Guarantee, to the rights of Holders to receive Guarantee
Payments under this QUIPS Guarantee Agreement.
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 QUIPS Guarantee Agreement
for the benefit of the Holders from time to time of the Capital Securities.<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this QUIPS 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 Declaration as in effect on the date hereof unless otherwise
indicated.
"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
QUIPS Guarantee Agreement.
"Common Securities" has the meaning specified in the recitals to this
QUIPS Guarantee Agreement.
"Debentures" means the series of subordinated debt securities of the
Guarantor designated the 6.86% Junior Subordinated Deferrable Interest
Debentures due July 27, 2003 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
"Declaration" has the meaning set forth in the preamble to this QUIPS
Guarantee Agreement.
"Distribution" shall have the same meaning as indicated in the
Declaration.
"Final Redemption Price" means the final redemption price of the
QUIPS, including all accumulated and unpaid Distributions to the date of
redemption.
"Guarantee Event of Default" has the meaning specified in Section
2.06.
"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 Declaration) required to be paid on
the Capital Securities, to the extent the Issuer shall have funds on hand
legally available therefor at such time, and (ii) the Final Redemption Price
with respect to the QUIPS outstanding on the Maturity Date of the Debentures (as
defined in the Indenture) to the extent the Issuer shall have funds on hand
legally available therefor at such time. If a Guarantee Event of Default has
occurred and is continuing, no Guarantee Payments under the Common Trust
Securities Guarantee with respect to the Common Trust Securities or any
guarantee payment under any Other Common Trust Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee Payments to which
they are entitled under this QUIPS Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Capital Securities or Normal Units that is deemed, under
the Declaration, to be a holder of any Capital Securities; PROVIDED, HOWEVER,
that in determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the QUIPS Guarantee Agreement Trustee or any
Affiliate of the Guarantor or the QUIPS Guarantee Agreement Trustee.
"Indemnified Person" means the QUIPS Guarantee Agreement Trustee, any
Affiliate of the QUIPS Guarantee Agreement Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the QUIPS Guarantee Agreement Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of the
date hereof, among the Guarantor and First Union National Bank, as trustee, as
the same may be amended or supplemented from time to time in accordance with the
terms hereof, pursuant to which the Debentures are to be issued to the Property
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 two of the following: the Chairman of the Board, Vice
Chairman of the Board, Chief Executive Officer, the President or a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this QUIPS 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.
"Other Common Trust Securities Guarantees" shall have the same meaning
as "Other Guarantees" in the Common Trust Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to trusts established or to be
established by the Guarantor, in each case similar to the issuer.
"Other Guarantees" means all guarantees issued by the Guarantor with
respect to securities similar to the QUIPS issued by other trusts to be
established by the Guarantor, in each case similar to the Issuer.
"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.
"QUIPS Guarantee Agreement" means this QUIPS Guarantee Agreement,
dated as of the date hereof, between AmerUs Life Holdings, Inc. and the QUIPS
Guarantee Agreement Trustee.
"QUIPS Guarantee Agreement Trustee" means First Union National Bank,
until a Successor QUIPS Guarantee Agreement Trustee has been appointed and has
accepted such appointment pursuant to the terms of this QUIPS Guarantee
Agreement and thereafter means each such Successor QUIPS Guarantee Agreement
Trustee.
"Responsible Officer" means, with respect to the QUIPS Guarantee
Agreement 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 Office of
the QUIPS Guarantee Agreement 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 Indebtedness" shall have the same meaning as indicated in the
Indenture.
"Successor QUIPS Guarantee Agreement Trustee" means a successor QUIPS
Guarantee Agreement Trustee possessing the qualifications to act as QUIPS
Guarantee Agreement Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" has the meaning specified in the recitals to this
QUIPS Guarantee Agreement.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This QUIPS Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this QUIPS
Guarantee Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) If and to the extent that any provision of this QUIPS 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 QUIPS 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 QUIPS 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 QUIPS
Guarantee Agreement Trustee (a) on a quarterly basis on each regular record
date for the Debentures, a list, in such form as the QUIPS Guarantee
Agreement 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 QUIPS Guarantee Agreement 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
QUIPS Guarantee Agreement Trustee in its capacity as such; PROVIDED,
HOWEVER, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the QUIPS Guarantee Agreement Trustee by
the Guarantor. The QUIPS Guarantee Agreement Trustee may destroy any List
of Holders previously given to it on receipt of a new List of Holders.
(b) The QUIPS Guarantee Agreement Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.03. Reports by the QUIPS Guarantee Agreement Trustee. Not
later than July 27 of each year, commencing July 27, 1999, the QUIPS Guarantee
Agreement 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(a) of the Trust Indenture Act. The QUIPS Guarantee
Agreement Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.04. Periodic Reports to QUIPS Guarantee Agreement Trustee.
The Guarantor shall provide to the QUIPS Guarantee Agreement 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; PROVIDED,
HOWEVER, that such compliance certificate shall be delivered on or before 120
days after the end of each fiscal year of the Guarantor. Delivery of such
reports, information and documents to the QUIPS Guarantee Agreement Trustee is
for informational purposes only and the QUIPS Guarantee Agreement Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Guarantor's compliance with any of its covenants hereunder (as to which the
QUIPS Guarantee Agreement Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the QUIPS Guarantee Agreement Trustee such evidence
of compliance with conditions precedent, if any, provided for in this QUIPS
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. Guarantee Events of Default; Waiver. (a) An event of
default under this QUIPS Guarantee Agreement will occur upon the failure of the
Guarantor to perform any of its payment or other obligations hereunder (a
"Guarantee Event of Default"); PROVIDED, HOWEVER, that, other than with respect
to a default on any payment under this QUIPS Guarantee Agreement, the Guarantor
shall have received notice of default and shall not have cured such default
within 90 days after receipt of such notice.
(b) 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 Guarantee Event of Default and its consequences.
Upon such waiver, any such Guarantee Event of Default shall cease to exist, and
any Guarantee Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this QUIPS Guarantee Agreement and the Common Trust
Securities Guarantee but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.07. Guarantee Event of Default; Notice.
(a) The QUIPS Guarantee Agreement Trustee shall, within 90 days after
the occurrence of a Guarantee Event of Default, transmit by mail, first
class postage prepaid, to the Holders of the Capital Securities, notices of
all Guarantee Events of Default known to the QUIPS Guarantee Agreement
Trustee, unless such Guarantee 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 QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders of the Capital Securities.
(b) The QUIPS Guarantee Agreement Trustee shall not be deemed to have
knowledge of any Guarantee Event of Default unless the QUIPS Guarantee
Agreement Trustee shall have received written notice, or a Responsible
Officer charged with the administration of this QUIPS Guarantee Agreement
shall have obtained actual knowledge, of such Guarantee Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration and the
Indenture shall be deemed to be specifically described in this QUIPS Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
QUIPS GUARANTEE AGREEMENT TRUSTEE
SECTION 3.01. Powers and Duties of the QUIPS Guarantee Agreement
Trustee.
(a) This QUIPS Guarantee Agreement shall be held by the QUIPS
Guarantee Agreement Trustee for the benefit of the Holders of the Capital
Securities, and the QUIPS Guarantee Agreement Trustee shall not transfer
this QUIPS 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 QUIPS Guarantee Agreement Trustee on acceptance by such
Successor QUIPS Guarantee Agreement Trustee of its appointment to act as
Successor QUIPS Guarantee Agreement Trustee. The right, title and interest
of the QUIPS Guarantee Agreement Trustee shall automatically vest in any
Successor QUIPS Guarantee Agreement Trustee, upon acceptance by such
Successor QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer has occurred and is continuing, the QUIPS Guarantee Agreement
Trustee shall enforce this QUIPS Guarantee Agreement for the benefit of the
Holders of the Capital Securities.
(c) The QUIPS Guarantee Agreement Trustee, before the occurrence of
any Guarantee Event of Default and after the curing of all Guarantee Events
of Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this QUIPS Guarantee Agreement, and
no implied covenants shall be read into this QUIPS Guarantee Agreement
against the QUIPS Guarantee Agreement Trustee. In case a Guarantee Event
of Default has occurred (that has not been cured or waived pursuant to
Section 2.06), and is actually known to a Responsible Officer, the QUIPS
Guarantee Agreement Trustee shall exercise such of the rights and powers
vested in it by this QUIPS 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 QUIPS Guarantee Agreement shall be construed
to relieve the QUIPS Guarantee Agreement 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 Guarantee Event of Default
and after the curing or waiving of all such Guarantee Events of
Default that may have occurred:
(A) the duties and obligations of the QUIPS Guarantee
Agreement Trustee shall be determined solely by the express
provisions of this QUIPS Guarantee Agreement, (including pursuant
to Section 2.01) and the QUIPS Guarantee Agreement Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this QUIPS Guarantee
Agreement and no implied covenants or obligations shall be read
into this QUIPS Guarantee Agreement against the QUIPS Guarantee
Agreement Trustee; and
(B) in the absence of bad faith on the part of the QUIPS
Guarantee Agreement Trustee, the QUIPS Guarantee Agreement
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 QUIPS Guarantee
Agreement Trustee and conforming to the requirements of this
QUIPS 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 QUIPS Guarantee Agreement Trustee, the QUIPS Guarantee
Agreement Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
QUIPS Guarantee Agreement;
(ii) the QUIPS Guarantee Agreement Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer
of the QUIPS Guarantee Agreement Trustee, unless it shall be proved
that the QUIPS Guarantee Agreement Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee, or exercising any
trust or power conferred upon the QUIPS Guarantee Agreement Trustee
under this QUIPS Guarantee Agreement; and
(iv) no provision of this QUIPS Guarantee Agreement shall require
the QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement 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 QUIPS Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.02. Certain Rights of QUIPS Guarantee Agreement Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The QUIPS Guarantee Agreement Trustee may conclusively 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 pre-
sented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
QUIPS Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this QUIPS Guarantee
Agreement, the QUIPS Guarantee Agreement Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the QUIPS Guarantee
Agreement 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 QUIPS Guarantee Agreement Trustee, shall be promptly de-
livered by the Guarantor.
(iv) The QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee shall have
the right at any time to seek instructions concerning the
administration of this QUIPS Guarantee Agreement from any court of
competent jurisdiction.
(v) The QUIPS Guarantee Agreement Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this QUIPS Guarantee Agreement at the request or direction of any
Holder, unless such Holder shall have provided to the QUIPS Guarantee
Agreement Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the QUIPS Guarantee
Agreement 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 QUIPS Guarantee Agreement Trustee;
provided that nothing contained in this Section 3.02(a)(v) shall be
taken to relieve the QUIPS Guarantee Agreement Trustee, upon the
occurrence of a Guarantee Event of Default, of its obligation to
exercise the rights and powers vested in it by this QUIPS Guarantee
Agreement.
(vi) The QUIPS Guarantee Agreement 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
QUIPS Guarantee Agreement Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit.
(vii) The QUIPS Guarantee Agreement 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 QUIPS Guarantee
Agreement 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 QUIPS Guarantee
Agreement the QUIPS Guarantee Agreement Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the QUIPS Guarantee
Agreement 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.
(ix) The QUIPS Guarantee Agreement Trustee shall have no duty to
see any recording, filing or registration of any instrument (or any
re-recording, refiling or re-registration thereof).
(x) Any action taken by the QUIPS Guarantee Agreement Trustee or
its agents hereunder shall bind the Holders, and the signature of the
QUIPS Guarantee Agreement Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the QUIPS
Guarantee Agreement Trustee to so act or as to its compliance with any
of the terms and provisions of this QUIPS Guarantee Agreement, both of
which shall be conclusively evidenced by the QUIPS Guarantee Agreement
Trustee's or its agent's taking such action.
(xii) The QUIPS Guarantee Agreement Trustee shall not be liable
for any action taken, suffered or omitted to be taken by it in good
faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this QUIPS Guarantee Agreement.
(b) No provision of this QUIPS Guarantee Agreement shall be deemed to
impose any duty or obligation on the QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement 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 QUIPS
Guarantee Agreement Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.03. Not Responsible for Recitals or Issuance of QUIPS
Guarantee Agreement. The recitals contained in this QUIPS Guarantee Agreement
shall be taken as the statements of the Guarantor, and the QUIPS Guarantee
Agreement Trustee does not assume any responsibility for their correctness. The
QUIPS Guarantee Agreement Trustee makes no representation as to the validity or
sufficiency of this QUIPS Guarantee Agreement.
ARTICLE IV
QUIPS GUARANTEE AGREEMENT TRUSTEE
SECTION 4.01. QUIPS Guarantee Agreement Trustee; Eligibility.
(a) There shall at all times be a QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee shall cease
to be eligible to so act under Section 4.01(a), the QUIPS Guarantee
Agreement Trustee shall immediately resign in the manner and with the
effect set out in Section 4.02(c).
(c) If the QUIPS Guarantee Agreement Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the QUIPS Guarantee Agreement 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 QUIPS Guarantee
Agreement Trustees.
(a) Subject to Section 4.02(b), the QUIPS Guarantee Agreement Trustee
may be appointed or removed without cause at any time by the Guarantor
except during a Guarantee Event of Default.
(b) The QUIPS Guarantee Agreement Trustee shall not be removed until
a Successor QUIPS Guarantee Agreement Trustee has been appointed and
has accepted such appointment by written instrument executed by such
Successor QUIPS Guarantee Agreement Trustee and delivered to the
Guarantor.
(c) The QUIPS Guarantee Agreement Trustee appointed hereunder shall
hold office until a Successor QUIPS Guarantee Agreement Trustee shall have
been appointed or until its removal or resignation. The QUIPS Guarantee
Agreement Trustee may resign from office (without need for prior or subse-
quent accounting) by an instrument in writing executed by the QUIPS
Guarantee Agreement Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor QUIPS Guarantee
Agreement Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor QUIPS Guarantee Agreement
Trustee and delivered to the Guarantor and the resigning QUIPS Guarantee
Agreement Trustee.
(d) If no Successor QUIPS Guarantee Agreement 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 QUIPS Guarantee Agreement Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor QUIPS Guarantee Agreement Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor QUIPS Guarantee Agreement Trustee.
(e) No QUIPS Guarantee Agreement Trustee shall be liable for the acts
or omissions to act of any Successor QUIPS Guarantee Agreement Trustee.
(f) Upon termination of this QUIPS Guarantee Agreement or removal or
resignation of the QUIPS Guarantee Agreement Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the QUIPS Guarantee Agreement
Trustee all amounts due to the QUIPS Guarantee Agreement Trustee accrued to
the date of such termination, removal or resignation.
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 QUIPS 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 QUIPS Guarantee Agreement
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 QUIPS 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), Final 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;
(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 acknowl-
edges that: (i) this QUIPS Guarantee Agreement will be deposited with the QUIPS
Guarantee Agreement Trustee to be held for the benefit of the Holders; (ii) the
QUIPS Guarantee Agreement Trustee has the right to enforce this QUIPS 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
QUIPS Guarantee Agreement Trustee in respect of this QUIPS Guarantee Agreement
or exercising any trust or power conferred upon the QUIPS Guarantee Agreement
Trustee under this QUIPS Guarantee Agreement; PROVIDED, HOWEVER, that (subject
to Section 3.01) the QUIPS Guarantee Agreement Trustee shall have the right to
decline to follow any such direction if the QUIPS Guarantee Agreement Trustee
shall determine that the actions so directed would be unjustly prejudicial to
the Holders not taking part in such direction or if the QUIPS Guarantee
Agreement Trustee, being advised by counsel, determines that the action or
proceeding so directed may not lawfully be taken or if the QUIPS Guarantee
Agreement Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee or directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the QUIPS Guarantee Agreement Trustee in personal liability; and (iv)
any Holder of Capital Securities may institute, to the extent permissible under
applicable law, a legal proceeding directly against the Guarantor to enforce its
rights under this QUIPS Guarantee Agreement without first instituting a legal
proceeding against the QUIPS Guarantee Agreement Trustee, the Issuer or any
other Person. The Guarantor waives any right or remedy to require that any
action be brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
SECTION 5.05. Guarantee of Payment. This QUIPS Guarantee Agreement
creates a guarantee of payment and not a guarantee of collection. This QUIPS
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 Declaration.
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 QUIPS 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 QUIPS Guarantee
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this QUIPS Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, 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 QUIPS 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. Limitation of Transactions. So long as any QUIPS
remain outstanding, the Guarantor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Guarantor's capital stock (which includes common and
preferred stock), (ii) make any payment of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Guarantor
(including any Other Debentures) that rank pari passu with or junior in right of
payment to the Debentures or (iii) make any guarantee payments with respect to
any guarantee by the Guarantor of any securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks pari passu or
junior in right of payment to the Debentures (other than in the case of
clauses (i), (ii) and (iii), (a) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of, common stock
of the Guarantor, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under this QUIPS Guarantee Agreement, (d) as a
result of a reclassification of the Guarantor's capital stock solely into shares
of one or more classes or series of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock, (e) the
purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged and (f) purchases of the Guarantor's
common stock in connection with the satisfaction by the Guarantor of its
obligations (including purchases related to the issuance of such common stock or
rights) under any of the Guarantor's benefit plans for its and its subsidiaries'
directors, officers or employees or any of the Guarantor's dividend reinvestment
plans), if at such time (x) a Guarantee Event of Default or an Event of Default
(as defined in the Indenture) shall have occurred and be continuing, (y) if such
Debentures are held by the Property Trustee, the Guarantor shall be in default
with respect to its payment of any obligations under this QUIPS Guarantee
Agreement or (z) the Guarantor shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant to
Section 3.01(b)(6) of the Indenture and any such extension shall have commenced
and not yet terminated.
SECTION 6.02. Subordination. (a) The obligations of the Guarantor
under this QUIPS Guarantee Agreement will constitute unsecured obligations of
the Guarantor and will rank subordinate and junior in right of payment to all
present and future Senior Indebtedness of the Guarantor to the extent and in the
manner that the Debentures are subordinated to all present and future Senior
Indebtedness pursuant to the Indenture, it being understood that the terms of
Article XII of the Indenture shall apply to the obligations of the Guarantor
under this QUIPS Guarantee Agreement as if (x) such Article XII were set forth
herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XII and pari passu with the Debentures
and Other Debentures. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.
(b) The right of the Guarantor to participate in any distribution of
assets of any of its subsidiaries upon any such subsidiary's liquidation or
reorganization or otherwise is subject to the prior claims of creditors of that
subsidiary, except to the extent the Guarantor may itself be recognized as a
creditor of that subsidiary. Accordingly, the Guarantor's obligations under
this QUIPS Guarantee Agreement will be effectively subordinated to all existing
and future liabilities of the Guarantor's subsidiaries, and claimants should
look only to the assets of the Guarantor for payments thereunder. This QUIPS
Guarantee Agreement does not limit the incurrence or issuance of other secured
or unsecured debt of the Guarantor, including Senior Indebtedness of the
Guarantor, under any indenture that the Guarantor may enter into in the future
or otherwise.
(c) If an Event of Default has occurred and is continuing, the rights
of holders of the Common Trust Securities of the Issuer to receive payments
under the Common Trust Securities Guarantee are subordinated to the rights of
Holders of QUIPS to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This QUIPS Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full payment of the
Final Redemption Price of all Capital Securities, (ii) upon liquidation of the
Issuer and the distribution of the Debentures to Holders of Capital Securities
or (iii) at such other time when there are no longer any Capital Securities
outstanding. Notwithstanding the foregoing, this QUIPS 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 QUIPS Guarantee Agreement. Guarantor will indemnify each
Holder and hold it harmless from and against any loss it may suffer in such
circumstance.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
QUIPS GUARANTEE AGREEMENT TRUSTEE
SECTION 8.01. Compensation and Expenses of QUIPS Guarantee Agreement
Trustee. The Guarantor covenants and agrees to pay to the QUIPS Guarantee
Agreement Trustee from time to time, and the QUIPS Guarantee Agreement Trustee
shall be entitled to, such compensation as shall be agreed to in writing between
the Guarantor and the QUIPS Guarantee Agreement Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and the Guarantor will pay or reimburse the QUIPS Guarantee
Agreement Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the QUIPS Guarantee Agreement Trustee in
accordance with any of the provisions of this QUIPS Guarantee Agreement
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such
expenses, disbursements or advances as may arise form its negligence or bad
faith. The Guarantor also covenants to indemnify the QUIPS Guarantee Agreement
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all loss, damage, claim, liability or expense
including taxes (other than taxes based on the income of the QUIPS Guarantee
Agreement Trustee) incurred without negligence or bad faith on the part of the
QUIPS Guarantee Agreement Trustee and arising out of or in connection with the
acceptance or administration of this guarantee, including the costs and expenses
of defending itself against any claim of liability in the premises. The
obligations of the Guarantor under this Article VIII to compensate and indemnify
the QUIPS Guarantee Agreement Trustee and to pay or reimburse the QUIPS
Guarantee Agreement Trustee for expenses, disbursements and advances shall be
secured by a lien prior to that of the QUIPS upon all property and funds held or
collected by the QUIPS Guarantee Agreement Trustee as such, except funds held in
trust for the benefit of the holders of particular QUIPS.
The provisions of this Article VIII shall survive the termination of
this QUIPS Guarantee Agreement.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Guarantor or
any Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this QUIPS Guarantee Agreement and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this QUIPS Guarantee Agreement or by
law, except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 9.02. Indemnification. The Guarantor agrees to indemnify
each Indemnified Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 9.02 shall survive the
termination of this QUIPS Guarantee Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Successors and Assigns. All guarantees and agreements
contained in this QUIPS 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 Seven 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 10.02. 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 QUIPS 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 (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined). The provisions of the Declaration concerning
meetings of Holders shall apply to the giving of such approval.
SECTION 10.03. 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 QUIPS Guarantee Agreement 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
QUIPS Guarantee Agreement Trustee:
AmerUs Capital II
c/o AmerUs Life Holdings, Inc.
418 Sixth Avenue
Des Moines, Iowa 50309-2407
Facsimile No: (515) 283-3402
Attention: Administrative Trustee
with copy to:
First Union National Bank
230 South Tyron Street, 9th Floor
Charlotte, NC 28288-1179
Facsimile No: (704) 383-7316
Attention: Corporate Trust Administration
(c) if given to the QUIPS Guarantee Agreement Trustee, at the QUIPS
Guarantee Agreement Trustee's address or telecopy number set forth below:
First Union National Bank
230 South Tyron Street, 9th Floor
Charlotte, NC 28288-1179
Facsimile No: (704) 383-7316
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 10.04. Benefit. This QUIPS Guarantee Agreement is solely for
the benefit of the Holders, and is not separately transferable from the Capital
Securities.
SECTION 10.05. Interpretation. In this QUIPS Guarantee Agreement,
unless the context otherwise requires:
(a) Capitalized terms used in this QUIPS 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 QUIPS Guarantee Agreement has the
same meaning throughout;
(c) all references to "the QUIPS Guarantee Agreement" or "this QUIPS
Guarantee Agreement" are to this QUIPS Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this QUIPS Guarantee Agreement to Articles and
Sections are to Articles and Sections of this QUIPS Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this QUIPS Guarantee Agreement unless otherwise defined in
this QUIPS 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 10.06. Governing Law. THIS QUIPS GUARANTEE AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
SECTION 10.07. Counterparts. This QUIPS Guarantee Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
<PAGE>
THIS QUIPS Guarantee Agreement is executed as of the day and year
first above written.
AMERUS LIFE HOLDINGS, INC.
/s/ Roger K. Brooks
By: ---------------------------------
Name: Roger K. Brooks
Title: Chairman, President and
Chief Executive Officer
FIRST UNION NATIONAL BANK,
as QUIPS Guarantee Agreement Trustee
/s/ Shawn K. Bednasek
By: ---------------------------------
Name: Shawn K. Bednasek
Title: Vice President
<PAGE>
Exhibit 4.9
----------------------------------------------------------------------------
AMERUS LIFE HOLDINGS, INC.
AND
FIRST UNION NATIONAL BANK,
as Unit Agent
---------------
MASTER UNIT AGREEMENT
----------------
Dated as of July 27, 1998
-------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
RECITALS. . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisionsof General Application
Section 101. Definitions . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions. . 9
Section 103. Form of Documents Delivered to Unit Agent10
Section 104. Acts of Holders; Record Dates . . . . .10
Section 105. Notices, etc. to Unit Agent and the Company12
Section 106. Notice to Holders; Waiver . . . . . . .12
Section 107. Effect of Headings and Table of Contents13
Section 108. Successors and Assigns. . . . . . . . .13
Section 109. Separability Clause . . . . . . . . . .13
Section 110. Benefits of Agreement . . . . . . . . .13
Section 111. Governing Law . . . . . . . . . . . . .13
Section 112. Legal Holidays. . . . . . . . . . . . .13
Section 113. Counterparts. . . . . . . . . . . . . .14
Section 114. Inspection of Agreement . . . . . . . .14
ARTICLE TWO
Unit Certificate Forms
Section 201. Forms of Unit Certificates Generally. .14
Section 202. Form of Unit Agent's Certificate of Authentication.15
ARTICLE THREE
The Units
Section 301. Title and Terms; Denominations. . . . .15
Section 302. Rights and Obligations Evidenced by the Unit Certificates.16
Section 303. Execution, Authentication, Delivery and Dating.16
Section 304. Temporary Unit Certificates.. . . . . .17
Section 305. Registration; Registration of Transfer and Exchange.17
Section 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates.20
Section 307. Persons Deemed Owners . . . . . . . . .21
Section 308. Cancellation. . . . . . . . . . . . . .21
Section 309. Substitution of Pledged Securities and Creation of Stripped
Units; Units Not Otherwise Separable22
Section 310. Payments on the Units . . . . . . . . .24
ARTICLE FOUR
The Pledged Securities
Section 401. Payments on the Pledged Securities. . .24
Section 402. Transfer of Pledged Securities Upon Occurrence of
Termination Event. . . . . . . . . . . . . . .25
ARTICLE FIVEThe Purchase Contracts
Section 501. Purchase of Shares of Common Stock26
Section 502. Contract Fees . . . . . . . . . . . . .28
Section 503. Deferral of Payment Dates For Contract Fee.28
Section 504. Payment of Purchase Price.. . . . . . .29
Section 505. Issuance of Shares of Common Stock. . .31
Section 506. Adjustment of Settlement Rate . . . . .32
Section 507. Notice of Adjustments and Certain Other Events37
Section 508. No Fractional Shares. . . . . . . . . .38
Section 509. Charges and Taxes . . . . . . . . . . .38
Section 510. Termination Event; Notice . . . . . . .39
ARTICLE SIXRemedies
Section 601. Unconditional Rights of Holders39
Section 602. Restoration of Rights and Remedies. . .39
Section 603. Rights and Remedies Cumulative. . . . .40
Section 604. Delay or Omission Not Waiver. . . . . .40
Section 605. Undertaking for Costs . . . . . . . . .40
Section 606. Waiver of Stay or Extension Laws. . . .41
ARTICLE SEVENThe Unit Agent
Section 701. Certain Duties and Responsibilities41
Section 702. Notice of Default . . . . . . . . . . .42
Section 703. Certain Rights of Unit Agent. . . . . .42
Section 704. Not Responsible for Recitals or Issuance of Units43
Section 705. May Hold Units. . . . . . . . . . . . .43
Section 706. Money Held in Trust . . . . . . . . . .43
Section 707. Compensation and Reimbursement. . . . .44
Section 708. Corporate Unit Agent Required; Eligibility44
Section 709. Resignation and Removal; Appointment of Successor45
Section 710. Acceptance of Appointment by Successor.46
Section 711. Merger, Conversion, Consolidation or Succession to Business47
Section 712. Preservation of Information; Communications to Holders47
Section 713. No Obligations of Unit Agent. . . . . .47
Section 714. Tax Compliance. . . . . . . . . . . . .48
ARTICLE EIGHTSupplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders48
Section 802. Supplemental Agreements with Consent of Holders49
Section 803. Execution of Supplemental Agreements. .50
Section 804. Effect of Supplemental Agreements . . .51
Section 805. Reference to Supplemental Agreements. .51
ARTICLE NINEConsolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.51
Section 902. Rights and Duties of Successor Corporation52
Section 903. Opinion of Counsel to Unit Agent. . . .52
ARTICLE TENCovenants
Section 1001. Performance Under Purchase Contracts52
Section 1002. Maintenance of Office or Agency. . . .53
Section 1003. Company to Reserve Common Stock. . . .53
Section 1004. Covenants as to Common Stock . . . . .53
Section 1005. Statements of Officers of the Company as to Default54
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . .55
SIGNATURES. . . . . . . . . . . . . . . . . . . . . .55
EXHIBIT A Form of Normal Unit Certificate
EXHIBIT B Form of Stripped Unit Certificate
EXHIBIT C Form of Call Option Agreement
EXHIBIT D Form of Pledge Agreement
<PAGE>
MASTER UNIT AGREEMENT, dated as of July 27, 1998, between AMERUS LIFE
HOLDINGS, INC, an Iowa corporation (the "Company"), and First Union National
Bank, a national banking corporation, acting as unit agent for the Holders of
Units from time to time (the "Unit Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Unit Certificates evidencing the Units.
All things necessary to make the Company's obligations under the Units,
when the Unit Certificates are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit Agent, as in
this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance
with its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the Units by
the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions
hereof.
"Aggregate Call Option Exercise Consideration" has the meaning set
forth in the Call Option Agreement.
"Applicable Market Value" has the meaning specified in Section 501.
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Unit Agent.
"Business Day" means any day other than Saturday, Sunday or any other
day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to be closed.
"Call Option" means an option entitling the Call Option Holder to
acquire the QUIPS or Junior Subordinated Debentures underlying the related
Normal Unit on the terms and subject to the conditions set forth in the
Call Option Agreement.
"Call Option Agreement" means the Call Option Agreement, dated as of
the date hereof, between the Call Option Holder named therein and the Unit
Agent, in its capacity as Unit Agent and as attorney-in-fact for the
Holders from time to time of the Normal Units, the form of which is
attached hereto as Exhibit C, as the same may be amended from time to time
in accordance with the terms hereof and thereof.
"Call Option Expiration Date" means April 27, 2001 (or, if such date
is not a Trading Day, the next succeeding Trading Day).
"Call Option Holder" means the Person named as the Call Option Holder
in the Call Option Agreement.
"Call Settlement Date" means the date on which the Call Options are
settled pursuant to the Call Option Agreement.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means The Chase Manhattan Bank, as Collateral Agent
under the Pledge Agreement, until a successor Collateral Agent shall have
become such pursuant to the applicable provisions of the Pledge Agreement,
and thereafter "Collateral Agent" shall mean the Person who is then the
Collateral Agent thereunder.
"Common Stock" means the Class A Common Stock, no par value per share,
of the Company having such terms as set forth in the Company's certificate
of incorporation, as amended from time to time.
"Company" means the Person designated as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means, with respect to each Purchase Contract, a fee
payable by the Company to the Holder of the related Unit, accruing on the
Stated Amount of such Unit from and including the date of first issuance of
any Units to but excluding the Stock Purchase Date and payable quarterly in
arrears on each Quarterly Payment Date to and including the Stock Purchase
Date at a rate per annum equal to the Contract Fee Rate (and computed on
the basis of a 360-day year of twelve 30-day months), plus any additional
fees accrued thereon pursuant to Section 503.
"Contract Fee Rate" means 0.14% of the Stated Amount per annum.
"Corporate Trust Office" means the principal office of the Unit Agent
in the Borough of Manhattan, The City of New York, at which at any
particular time its corporate trust business shall be administered,
which office at the date hereof is located at 40 Broad Street, 5th Floor,
New York, New York 10004.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Declaration" means the Declaration of Trust, dated as of April 14,
1998 and amended and restated as of the date hereof, executed by the
Administrators, the Sponsor and the Trustees of the Trust, as the same
may be amended or supplemented from time to time in accordance with the
terms thereof.
"Deferral Rate" means 6.86% per annum plus, for the period after the
Call Option Expiration Date, the amount (if any) by which the interest
rate on the Junior Subordinated Debentures shall have been increased on
the Call Option Expiration Date in accordance with the terms of the Junior
Subordinated Debentures.
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for Global Units as contemplated
by Section 305.
"Exchange Act" means the Securities Exchange Act of 1934 or any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Unit Certificate" means a Unit Certificate that evidences all
or part of the Normal Units or a Unit Certificate that evidences all or a
part of the Stripped Units and is registered in the name of the Depositary
or a nominee thereof.
"Holder" means a Person in whose name a Unit Certificate is registered
in the Unit Register; "Holder", when used with respect to any particular
Unit Certificate (or Unit), means a Person in whose name such Unit
Certificate (or the Unit Certificate evidencing such Unit) is registered
in the relevant Unit Register.
"Indenture" means the Indenture, dated as of the date hereof, between
the Company and First Union National Bank, as Trustee, as the same may be
amended or supplemented from time to time with respect to the terms of the
Junior Subordinated Debentures in accordance with the terms thereof.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman, its President or a Vice President and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Unit Agent.
"Junior Subordinated Debenture Put Option" has the meaning specified
for the term "Put Option" in the Indenture.
"Junior Subordinated Debentures" means the 6.86% Junior Subordinated
Deferrable Interest Debentures due July 27, 2003 of the Company issued
under the Indenture.
"Normal Unit" means the rights to purchase Common Stock under a
Purchase Contract, together with ownership of the QUIPS or other Pledged
Securities pledged to secure the obligations referred to in (a) and (b)
below, subject to (a) the obligations owed to the Company under such
Purchase Contract, (b) for so long as any Call Options remain exercisable,
the obligations owed to the Call Option Holder under a Call Option and (c)
the pledge arrangements securing the foregoing obligations; PROVIDED,
HOWEVER, that the term "Normal Unit" will not include any Stripped Unit.
"NYSE" has the meaning specified in Section 501.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman, the President or any Vice President and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company and delivered to the Unit Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"Outstanding Unit Certificates" means, as of the date of determination,
all Unit Certificates theretofore authenticated, executed and delivered
pursuant to this Agreement, except:
(a) Unit Certificates theretofore canceled by the Unit Agent or
delivered to the Unit Agent for cancellation; and
(b) Unit Certificates in exchange for or in lieu of which other Unit
Certificates have been authenticated, executed on behalf of the Holder and
delivered pursuant to this Agreement, other than any such Unit Certificate
in respect of which there shall have been presented to the Unit Agent proof
satisfactory to it that such Unit Certificate is held by a bona fide
purchaser in whose hands the Units evidenced by such Unit Certificate are
valid obligations of the Company.
"Outstanding Units" means, as of the date of determination, all Units
evidenced by then Outstanding Unit Certificates, except, on or after the
Termination Date or Stock Purchase Date, Units for which the underlying
Pledged Securities or the Common Stock purchasable upon settlement of the
underlying Purchase Contracts, as the case may be, have been theretofore
deposited with the Unit Agent in trust for the Holders of such Units;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite number of Units have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Units owned by the
Company or any Affiliate of the Company shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Unit Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units which the
Unit Agent actually knows to be so owned shall be so disregarded. Units so
owned which have been pledged in good faith may be regarded as Outstanding
Units if the pledgee establishes to the satisfaction of the Unit Agent the
pledgee's right so to act with respect to such Units and that the pledgee
is not the Company or any Affiliate of the Company.
"Paid Units" has the meaning specified in Section 504(a).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Pledge" means the pledge of the Pledged Securities under the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, among the Company, the Call Option Holder, the Collateral Agent and
the Unit Agent, in its capacity as Unit Agent and as attorney-in-fact for
the Holders from time to time of the Units, the form of which is attached
hereto as Exhibit D, as the same may be amended from time to time in
accordance with the terms hereof and thereof.
"Pledged Securities" has the meaning specified in the Pledge Agreement.
"Predecessor Unit Certificate" of any particular Unit Certificate means
every previous Unit Certificate evidencing all or a portion of the rights
and obligations of the Holder under the Units evidenced thereby; and, for
the purposes of this definition, any Unit Certificate authenticated and
delivered under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Unit Certificate shall be deemed to evidence the
same rights and obligations of the Holder as the mutilated, destroyed, lost
or stolen Unit Certificate.
"Principal Agreements" means this Agreement, the Pledge Agreement and
the Call Option Agreement.
"Purchase Contract" means a contract obligating the Company to sell
and the Holder of the related Unit to purchase Common Stock on the terms
and subject to the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 505.
"Purchased Shares" has the meaning specified in Section 506(a)(6).
"Put Agent" has the meaning specified in Section 504(b)(i).
"Quarterly Payment Date" means each January 27, April 27, July 27 and
October 27, commencing October 27, 1998.
"QUIPS"-SM-* means 6.86% Quarterly Income Preferred Securities of the
Trust issued under the Declaration, which term may refer to a single
security or more than one security as the context may require.
"Record Date", when used with respect to any payment date, means the
Business Day next preceding such payment date; PROVIDED, HOWEVER, that if
any Units are no longer evidenced by a Global Unit Certificate, "Record
Date", when used with respect to any payment date for such Units, means the
first day of the month in which such payment date falls; and PROVIDED
FURTHER, that if payments are in respect of QUIPS or Junior Subordinated
Debentures underlying Normal Units, "Record Date", when used with respect
to such payments, means the record date for such payments determined as
provided under the Declaration or the Indenture, as the case may be.
"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer", when used with respect to the Unit Agent, means
any vice president, any assistant vice president, any assistant secretary,
any assistant treasurer, any trust officer or assistant trust officer, or
any other officer or assistant officer of the Unit Agent customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
---------------------
* QUIPS is a servicemark of Goldman, Sachs & Co.<PAGE>
"Senior
Indebtedness" has the meaning specified in the Indenture.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $31.5625 per Unit.
"Stock Purchase Date" means July 27, 2001.
"Stripped Unit" means the rights to purchase Common Stock under a
Purchase Contract, together with ownership of the Treasury Securities
pledged to secure the obligations referred to in (a) below, subject to (a)
the obligations owed to the Company under such Purchase Contract and (b)
the pledge arrangements securing the foregoing obligations; PROVIDED,
HOWEVER, that the term "Stripped Unit" will only include Units issued as
a result of a Stripped Unit Creation as contemplated by Section 309.
"Stripped Unit Creation" has the meaning specified in Section 309(a).
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following
events at any time on or prior to the Stock Purchase Date: (a) a decree or
order of a court having jurisdiction in the premises shall have been
entered adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company under
the United States Bankruptcy Code or any other similar applicable Federal
or State law, and, unless such decree or order shall have been entered
within 60 days prior to the Stock Purchase Date, such decree or order
shall have continued undischarged and unstayed for a period
of 60 days, or (b) a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Company or of its property,
or for the winding up or liquidation of its affairs, shall have been
entered, and, unless such decree or order shall have been entered within
60 days prior to the Stock Purchase Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days, or (c) the
Company shall institute proceedings to be adjudicated a bankrupt, or
shall consent to the filing of a bankruptcy proceeding against it, or
shall file a petition or answer or consent seeking reorganization under
the United States Bankruptcy Code or any other similar applicable Federal
or State law, or shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
501.
"TIA" means the Trust Indenture Act of 1939 or any statute successor
thereto, in each case as amended from time to time.
"Trading Day" has the meaning specified in Section 501.
"Treasury Securities" means United States Treasury Securities.
"Trust" means AmerUs Capital II, a statutory business trust created
under the laws of the State of Delaware.
"Underwriting Agreement" means the Underwriting Agreement dated July
21, 1998, among the Company, the Trust and Goldman, Sachs & Co. and Smith
Barney Inc., as the Underwriters named therein.
"Unit Agent" means the Person named as the "Unit Agent" in the first
paragraph of this Agreement until a successor Unit Agent shall have become
such pursuant to the applicable provisions of this Agreement, and
thereafter "Unit Agent" shall mean the Person who is then the Unit Agent
hereunder.
"Unit Certificate" means a certificate evidencing the rights and obli-
gations of a Holder in respect of the number of Normal Units or Stripped
Units, as the case may be, specified on such certificate.
"Unit Register" and "Unit Registrar" have the respective meanings
specified in Section 305.
"Units" means the Normal Units and, if any are issued, the Stripped
Units.
The Purchase Contracts, Call Options and/or Pledged Securities constituting a
part of any Units are sometimes referred to herein as "underlying" such Units
and are sometimes herein said to "underlie" such Units.
"Unpaid Units" has the meaning specified in Section 504(a).
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Unit Agent to take any action under
any provision of this Agreement, the Company shall furnish to the Unit Agent at
the Unit Agent's request (i) an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and/or (ii) an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions 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 Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Agreement shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Unit Agent.
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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, 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 Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by 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 Unit Agent
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 Agreement
and (subject to Section 701) conclusive in favor of the Unit Agent 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 instru-
ment or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Unit Agent deems sufficient.
(c) The ownership of Units shall be proved by the Unit Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Unit shall bind every future Holder of the
same Unit and the Holder of every Unit Certificate evidencing such Unit 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 Unit
Agent or the Company in reliance thereon, whether or not notation of such action
is made upon such Unit Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Units. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Units on such record date, and no other Holders, shall be
entitled to take the relevant action, 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 number of Outstanding Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company 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 canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Units 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 Unit Agent in writing and to each Holder of Units in the manner set
forth in Section 106.
With respect to any record date set pursuant to this Section, the Company
may designate any date as the "Expiration Date" and from time to time may change
the Expiration Date to any earlier or later day; PROVIDED that no such change
shall be effective unless notice of the proposed new Expiration Date is given to
the Unit Agent in writing, and to each Holder of Units 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 Company 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.
Section 105. Notices, etc. to Unit Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Agreement
to be made upon, given or furnished to, or filed with,
(a) the Unit Agent by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Unit Agent at 230
S. Tyson St, 9th Floor, Charlotte NC 28288, Attention: Shawn K. Bednasek or
at any other address previously furnished in writing by the Unit Agent to
the Holders and the Company, or
(b) the Company by the Unit Agent or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed in writing and personally
delivered or mailed, first-class postage prepaid, to the Company at 699
Walnut Street, Des Moines, Iowa 50309-3948, Attention: General Counsel, or
at any other address previously furnished in writing by the Company to the
Unit Agent and the Holders.
Section 106. Notice to Holders; Waiver.
Where this Agreement 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 Unit Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders 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 Agreement 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
Unit Agent, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Unit Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 107. 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 108. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
In case any provision in this Agreement or in the Units shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 110. Benefits of Agreement.
Nothing in this Agreement or in the Unit Certificates, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefits or any legal or equitable right, remedy
or claim under this Agreement. The Holders from time to time shall be benefi-
ciaries of this Agreement and shall be bound by all of the terms and conditions
hereof and of the Units evidenced by their Unit Certificates by their acceptance
of delivery thereof.
Section 111. Governing Law.
THIS AGREEMENT AND THE UNITS 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 112. Legal Holidays.
In any case where any Quarterly Payment Date or the Stock Purchase Date
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Units) payment in respect of distributions or interest on or
principal of Pledged Securities or Contract Fees shall not be made, Purchase
Contracts shall not be performed and other actions described herein shall not
occur, but such payments shall be made, the Purchase Contracts shall be
performed and such other actions shall occur, as applicable, on the next suc-
ceeding Business Day with the same force and effect as if made on such Quarterly
Payment Date or Stock Purchase Date, as the case may be; PROVIDED, that to the
extent such payment is made on the next succeeding Business Day, no
distributions or interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Quarterly Payment Date or Stock
Purchase Date, as the case may be, to the date of payment or performance; except
that if such next succeeding Business Day is in the next succeeding calendar
year, such payment shall be made, the Purchase Contracts shall be performed or
such other action shall occur on the immediately preceding Business Day with the
same force and effect as if made on such Quarterly Payment Date or the Stock
Purchase Date.
Section 113. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
Section 114. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times at the
Corporate Trust Office for inspection by any Holder.
ARTICLE TWO
Unit Certificate Forms
Section 201. Forms of Unit Certificates Generally.
Unit Certificates evidencing Normal Units shall be in substantially the
form set forth in Exhibit A hereto and Unit Certificates evidencing the Stripped
Units shall be in substantially the form of Exhibit B hereto, in each case with
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Units are listed
or Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Unit Certificates, as evidenced by their
execution of the Unit Certificates.
The definitive Unit Certificates shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing the Unit Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Unit Certificate authenticated, executed and delivered
hereunder shall bear a legend in substantially the following form:
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING OF
THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE REGISTERED, AND NO
TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE MASTER UNIT AGREEMENT.
Section 202. Form of Unit Agent's Certificate of Authentication.
The form of the Unit Agent's certificate of authentication of the Units
shall be in substantially the form set forth on the form of the Unit
Certificates.
ARTICLE THREE
The Units
Section 301. Title and Terms; Denominations.
The aggregate number of Units evidenced by Unit Certificates authenticated,
executed on behalf of the Holders and delivered hereunder is limited to
4,150,000 (subject to increase up to a maximum of 585,400 to the extent the
over-allotment option of the underwriters under the Underwriting Agreement is
exercised), except for Unit Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates pursuant to Section 304, 305, 306 or 805.
All of the Unit Certificates authenticated, executed and delivered
hereunder shall be Normal Units except for any Unit Certificates evidencing
Stripped Units issued in connection with a Stripped Unit Creation pursuant to
Section 309 and Unit Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates evidencing Stripped Units pursuant to Section 304, 305, 306 or 805.
Unit Certificates shall be issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof.
Section 302. Rights and Obligations Evidenced by the Unit Certificates.
Each Unit Certificate shall evidence the number of Units specified therein.
Prior to the purchase, if any, of shares of Common Stock under the Purchase
Contracts, the Units shall not entitle the Holders to any of the rights or
privileges of a holder of shares of Common Stock by virtue of holding such
Units, including, without limitation, the right to vote or receive any dividends
or other distributions or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or for the election of directors of the
Company or for any other matter.
Section 303. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 309 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
the Company may deliver Unit Certificates executed by the Company to the Unit
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Unit Certificates, and
the Unit Agent in accordance with such Issuer Order shall authenticate, execute
on behalf of the Holders and make such Unit Certificates available for delivery.
The Unit Certificates 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 Unit Certificates may be manual or facsimile.
Unit Certificates 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 Unit Certificates or
did not hold such offices at the date of such Unit Certificates.
Each Unit Certificate shall be dated the date of its authentication.
No Purchase Contract or Call Option underlying a Unit evidenced by a Unit
Certificate shall be valid until such Unit Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Unit Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Unit Agent shall be conclusive evidence that the Holder of such
Unit Certificate has entered into the Purchase Contracts and Call Options
underlying the Units evidenced by such Unit Certificate.
No Unit Certificate shall be entitled to any benefit under this Agreement
or be valid or obligatory for any purpose unless there appears on such Unit
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Unit Agent by manual
signature, and such certificate upon any Unit Certificate shall be conclusive
evidence, and the only evidence, that such Unit Certificate has been duly
authenticated and delivered hereunder.
Section 304. Temporary Unit Certificates.
Pending the preparation of definitive Unit Certificates, the Company shall
execute and deliver (together with an Issuer Order) to the Unit Agent, and the
Unit Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Unit Certificates, temporary Unit Certificates which are
in substantially the form set forth in Exhibit A or Exhibit B hereto, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Units are listed
or Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Unit Certificates, as evidenced by their
execution of the Unit Certificates.
If temporary Unit Certificates are issued, the Company will cause
definitive Unit Certificates to be prepared without unreasonable delay. After
the preparation of definitive Unit Certificates, the temporary Unit Certificates
shall be exchangeable for definitive Unit Certificates upon surrender of the
temporary Unit Certificates at the Corporate Trust Office, at the expense of the
Company and without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Unit Certificates, the Company shall execute and
deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive
Unit Certificates of authorized denominations and evidencing a like number of
Normal Units or Stripped Units, as the case may be, as the temporary Unit
Certificate or Unit Certificates so surrendered. Until so exchanged, the
temporary Unit Certificates shall in all respects evidence the same benefits and
the same obligations with respect to the Units evidenced thereby as definitive
Unit Certificates.
Section 305. Registration; Registration of Transfer and Exchange.
The Unit Agent shall keep at the Corporate Trust Office registers (the
registers maintained in such office being herein referred to as the "Unit
Registers") in which, subject to such reasonable regulations as it may
prescribe, the Unit Agent shall provide for the registration of Unit
Certificates evidencing the Normal Units and the Stripped Units and of transfers
of Unit Certificates evidencing the Normal Units and the Stripped Units (the
Unit Agent, in such capacity, the "Unit Registrar"). Upon request from any
Trustee or Administrator of the Trust, the Unit Agent shall furnish to such
requesting party a copy of the Unit Register for the Unit Certificates
evidencing the Normal Units as promptly as practicable.
Upon surrender for registration of transfer of any Unit Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Unit Agent,
and the Unit Agent shall authenticate, execute on behalf of the designated
transferee or transferees, and deliver, in the name of the designated transferee
or transferees, one or more new Unit Certificates evidencing a like number of
Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Unit Certificates may be exchanged for other
Unit Certificates evidencing a like number of Normal Units or Stripped Units, as
the case may be, upon surrender of the Unit Certificates to be exchanged at the
Corporate Trust Office. Whenever any Unit Certificates are so surrendered for
exchange, the Company shall execute and deliver to the Unit Agent, and the Unit
Agent shall authenticate, execute on behalf of the Holder, and deliver the Unit
Certificates which the Holder making the exchange is entitled to receive.
All Unit Certificates issued upon any registration of transfer or exchange
of a Unit Certificate shall evidence the ownership of the same number of Normal
Units or Stripped Units, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under the Principal Agreements as
the Normal Units or Stripped Units, as the case may be, evidenced by the Unit
Certificate surrendered upon such registration of transfer or exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Unit Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Unit Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or ex-
change of a Unit Certificate, but the Company and the Unit Agent may require
payment from the Holder of a sum sufficient to cover any tax or other govern-
mental charge that may be imposed in connection with any registration of
transfer or exchange of Unit Certificates (which, for these purposes, includes a
Stripped Unit Creation or a transfer of Pledged Securities as contemplated by
Section 504(a)), other than any exchanges pursuant to Sections 304, 306 and 805
not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Unit Certifi-
cate in respect of a Unit Certificate presented or surrendered for registration
of transfer or for exchange on or after the Stock Purchase Date or the
Termination Date. In lieu of delivery of a new Unit Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Unit Certificate, or (b) if a Termination
Event shall have occurred on or prior to the Stock Purchase Date, transfer the
liquidation or principal amount of the Pledged Securities evidenced thereby, in
each case subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only to
Global Unit Certificates:
(a) Each Global Unit Certificate authenticated and executed on behalf
of the Holders under this Agreement shall be registered in the name of the
Depositary designated for such Global Unit Certificate or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Unit Certificate shall constitute a single
Unit Certificate for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Agreement, no Global
Unit Certificate may be exchanged in whole or in part for Unit Certificates
registered, and no transfer of a Global Unit Certificate in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Unit Certificate or a nominee thereof unless (i) such
Depositary (x) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Unit Certificate or (y) has ceased
to be a clearing agency registered under the Exchange Act or (ii) there
shall have occurred and be continuing a default by the Company in respect
of its obligations under one or more Principal Agreements.
(c) Subject to Clause (b) above, any exchange of a Global Unit
Certificate for other Unit Certificates may be made in whole or in part,
and all Unit Certificates issued in exchange for a Global Unit Certificate
or any portion thereof shall be registered in such names as the Depositary
for such Global Unit Certificate shall direct.
(d) Every Unit Certificate authenticated and delivered upon
registration of transfer of, in exchange for or in lieu of a Global Unit
Certificate or any portion thereof, whether pursuant to this Section, Sec-
tion 304, 306 or 805 or otherwise, shall be authenticated, executed on
behalf of the Holders and delivered in the form of, and shall be, a Global
Unit Certificate, unless such Unit Certificate is registered in the name of
a Person other than the Depositary for such Global Unit Certificate or a
nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates.
If any mutilated Unit Certificate is surrendered to the Unit Agent, the
Company shall execute and deliver to the Unit Agent, and the Unit Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Unit Certificate, evidencing the same number of Normal Units or Stripped
Units, as the case may be, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Unit Agent (a) evidence
to their satisfaction of the destruction, loss or theft of any Unit Certificate,
and (b) such security or indemnity as may be required by them to save each of
them and any agent of any of them harmless, then, in the absence of notice to
the Company or the Unit Agent that such Unit Certificate has been acquired by a
bona fide purchaser, the Company shall execute and deliver to the Unit Agent,
and the Unit Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Unit
Certificate, a new Unit Certificate, evidencing the same number of Normal Units
or Stripped Units, as the case may be, and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the Holder, on
or after the Stock Purchase Date or the Termination Date, a Unit Certificate in
respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu
of delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Unit Agent shall
(a) if the Stock Purchase Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units
evidenced by such Unit Certificate, or (b) if a Termination Event shall have
occurred on or prior to the Stock Purchase Date, transfer the liquidation or
principal amount of the Pledged Securities evidenced thereby, in each case
subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Unit Certificate under this Section, the
Company and the Unit Agent may require the payment by the Holder 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
Unit Agent) connected therewith.
Every new Unit Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Unit Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of the Principal Agreements equally and proportionately
with any and all other Unit Certificates delivered 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
settlement of mutilated, destroyed, lost or stolen Unit Certificates.
Section 307. Persons Deemed Owners.
Prior to due presentment of a Unit Certificate for registration of trans-
fer, the Company and the Unit Agent, and any agent of the Company or the Unit
Agent, may treat the Person in whose name such Unit Certificate is registered as
the owner of the Units evidenced thereby, for the purpose of receiving payments
of distributions or interest on the Pledged Securities, receiving or making
payments of Contract Fees and performance of the underlying Purchase Contracts
and Call Options and for all other purposes whatsoever, whether or not the
payment of distributions or interest on the Pledged Securities or any Contract
Fee payable in respect of the Purchase Contracts constituting a part of the
Units evidenced thereby shall be overdue and notwithstanding any notice to the
contrary, and neither the Company nor the Unit Agent, nor any agent of the
Company or the Unit Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit Certificate,
nothing herein shall prevent the Company, the Unit Agent or any agent of the
Company or the Unit Agent, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global Unit Certificate or impair, as between such
Depositary and owners of beneficial interests in such Global Unit Certificate,
the operation of customary practices governing the exercise of rights of such
Depositary (or its nominee) as Holder of such Global Unit Certificate.
Section 308. Cancellation.
All Unit Certificates surrendered for delivery of shares of Common Stock on
or after the Stock Purchase Date, transfer of Pledged Securities after the
occurrence of a Termination Event or registration of transfer or exchange shall,
if surrendered to any Person other than the Unit Agent, be delivered to the Unit
Agent and, if not already canceled, shall be promptly canceled by it. The
Company may at any time deliver to the Unit Agent for cancellation any Unit
Certificates previously authenticated, executed and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Unit
Certificates so delivered shall, upon Issuer Order, be promptly canceled by the
Unit Agent. No Unit Certificates shall be authenticated, executed on behalf of
the Holder and delivered upon transfer of, in exchange for or in lieu of any
Unit Certificates canceled as provided in this Section, except as expressly
permitted by this Agreement. All canceled Unit Certificates held by the Unit
Agent shall be disposed of as directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the Unit
Agent canceled or for cancellation.
Section 309. Substitution of Pledged Securities and Creation of Stripped
Units; Units Not Otherwise Separable.
(a) A Holder of Normal Units may obtain the release from the Pledge of
such Holder's Pledged Securities underlying such Normal Units, free and clear of
the Company's and the Call Option Holder's security interests therein, and
convert such Normal Units into Stripped Units (collectively, a "Stripped Unit
Creation") at any time after the original issuance of such Normal Units and on
or prior to the second Business Day immediately preceding the Stock Purchase
Date by:
(i) delivering to the Collateral Agent: (w) Treasury Securities that
through their scheduled payments will generate on the Stock Purchase Date
an amount of cash that is at least equal to the aggregate Stated Amount of
such Normal Units, (x) if any Contract Fees are or will be payable by the
Holders to the Company, Treasury Securities that through their scheduled
payments will generate on each Quarterly Payment Date falling after the
date on which the requirements for such Stripped Unit Creation contained in
this Section 309(a) are satisfied and on or before the Stock Purchase Date
an amount of cash equal to the aggregate Contract Fees that are scheduled
to be payable in respect of the Purchase Contracts underlying such Normal
Units on each such Quarterly Payment Date (assuming for this purpose that
no Contract Fees will then have been deferred under Section 503); (y) if
there are any deferred Contract Fees payable by such Holder to the Company
on the date on which the requirements for such Stripped Unit Creation
contained in this Section 309(a) are satisfied, an amount of cash equal to
(1) the aggregate unpaid amount of such Contract Fees accrued to such date,
if such date is a Quarterly Payment Date, and (2) the aggregate unpaid
amount of such Contract Fees accrued to the Quarterly Payment Date
immediately preceding such date plus interest thereon at a rate per annum
equal to the Deferral Rate for the period from and including such Quarterly
Payment Date to but excluding such date (calculated on the basis of a
360-day year of twelve 30-day months), if such date is not a Quarterly
Payment Date; and (z) if the Call Options underlying such Normal Units
remain exercisable on the date on which the requirements contained in this
Section 309(a) for such Stripped Unit Creation are satisfied, an instrument
from the Call Option Holder releasing its security interest in the Pledged
Securities securing such Call Options and agreeing that such Call Options
no longer underlie such Normal Units (or the Stripped Units they become);
and
(ii) surrendering the Unit Certificate evidencing such Normal Units,
with the form of Request to Create Stripped Units thereon duly completed
and executed, to the Unit Agent, whereupon the Unit Agent shall promptly
request the Collateral Agent to release the Pledged Securities underlying
such Normal Units;
PROVIDED, HOWEVER, that if Treasury Securities are the Pledged Securities
underlying such Normal Units, a Stripped Unit Creation may only be effected with
respect to a number of Normal Units that will result in the release from the
Pledge of Treasury Securities in denominations of $1,000 and integral multiples
thereof.
(b) Upon receipt of the items described in clause (i) of Section 309(a)
above and the request from the Unit Agent described in clause (ii) of Section
309(a) above, the Collateral Agent will, in accordance with the terms of the
Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the
Pledge, free and clear of the Company's and the Call Option Holders's security
interests therein, the securities that theretofore had been the Pledged
Securities underlying such Normal Units, and upon receipt thereof the Unit Agent
shall promptly:
(i) cancel the Unit Certificate for such Normal Units;
(ii) transfer such released Pledged Securities to the Holder or,
subject to Section 305, the Holder's designee;
(iii)authenticate, execute on behalf of such Holder and deliver to the
Holder or, subject to Section 305, the Holder's designee a Unit Certificate
executed by the Company in accordance with Section 303 evidencing a number
of Stripped Units equal to the number of such Normal Units.
Concurrently with the release of the securities that theretofore had been the
Pledged Securities underlying such Normal Units as contemplated by the preceding
sentence, the Treasury Securities delivered to the Collateral Agent as
contemplated by clause (i) of Section 309(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Stripped
Units created from such Normal Units.
(c) Except for a Stripped Unit Creation effected in compliance with this
Section 309, for so long as the Purchase Contract underlying a Normal Unit
remains in effect such Normal Unit shall not be separable into its constituent
parts, and the rights and obligations of the Holder of such Normal Unit in
respect of the Pledged Securities, Purchase Contract and Call Option underlying
such Normal Unit may be acquired, and may be transferred and exchanged, only as
an integrated Normal Unit. For so long as the Purchase Contract underlying a
Stripped Unit remains in effect such Stripped Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Securities and Purchase Contract
underlying such Stripped Unit may be acquired, and may be transferred and
exchanged, only as an integrated Stripped Unit. Other than a Unit Certificate,
no Holder of a Unit, nor any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Pledged Securities or any other rights
or obligations underlying such Unit for so long as the Purchase Contract
underlying such Unit remains in effect.
Section 310. Payments on the Units.
Contract Fees payable by the Company to the Holders, and all amounts
payable to Holders as required by Section 401 or 504(b), will be payable at the
office of the Unit Agent in The City of New York maintained for that purpose or,
at the option of the Company, by check mailed to the address of the Person
entitled thereto at such address as it appears on the relevant Unit Register on
the Record Date; PROVIDED, HOWEVER, that for so long as any Units are evidenced
by Global Certificates, the Unit Agent will pay each such amount payable in
respect of such Units by wire transfer in same-day funds, no later than
2:00 p.m., New York City time, on the Business Day such amount is received by
the Unit Agent from the Collateral Agent or the Company (or, if such amount is
received by the Unit Agent after 1:00 p.m., New York City time, on a Business
Day or on a day that is not a Business Day, no later than 10:00 a.m., New York
City time, on the next succeeding Business Day), to the Depositary, to the
account or accounts designated by it for such purpose.
ARTICLE FOUR
The Pledged Securities
Section 401. Payments on the Pledged Securities.
On each Quarterly Payment Date, as provided by the terms of the Pledge
Agreement, subject to receipt by the Collateral Agent of the relevant payments
in respect of the Pledged Securities underlying any Holder's Units, (a) the
Collateral Agent shall, subject to Section 504(b), remit to the Unit Agent the
amount of such payments and (b) the Unit Agent shall pay the amount referred to
in clause (a) above, subject to receipt thereof by the Unit Agent from the
Collateral Agent, to the Person in whose name the Unit Certificate (or one or
more Predecessor Unit Certificates) evidencing such Units is registered at the
close of business on the Record Date next preceding such Quarterly Payment Date.
Payments on the Pledged Securities on the Stock Purchase Date are discussed
at Section 504.
Section 402. Transfer of Pledged Securities Upon Occurrence of Termination
Event.
Upon the occurrence of a Termination Event and the transfer of the Pledged
Securities underlying each Holder's Units to the Unit Agent pursuant to the
terms of the Pledge Agreement, the Unit Agent shall request transfer
instructions with respect to such Pledged Securities from such Holder by written
request mailed to such Holder at his address as it appears in the relevant Unit
Register and shall give notice of such Termination Event to the Collateral
Agent. Thereafter, upon surrender to the Unit Agent of a Unit Certificate
evidencing a Holder's Units, with transfer instructions in proper form for
transfer of the underlying Pledged Securities, the Unit Agent shall transfer the
Pledged Securities evidenced by such Unit Certificate to such Holder in
accordance with such instructions; PROVIDED, HOWEVER, that if the Pledged
Securities are to be transferred to a Person other than the Person in whose name
such Unit Certificate is registered, no such transfer shall be made unless the
Person requesting the transfer has paid any transfer and other taxes required by
reason of such transfer to a Person other than the registered Holder of such
Unit Certificate or has established to the satisfaction of the Company that such
tax either has been paid or is not payable. Until the foregoing conditions to
transfer any of the Pledged Securities underlying any Units has been met, the
Unit Agent shall hold such Pledged Securities as custodian for the Holder of
such Units.
If upon a Termination Event any Holder of Units would, after satisfying the
foregoing conditions, otherwise be entitled to receive (or have transferred to
such Holder's designee) Treasury Securities of any series having a principal
amount that is not an integral multiple of $1,000, such Holder shall instead be
entitled to receive (or have transferred to such Holder's designee) Treasury
Securities of such series in a principal amount equal to the next lower integral
multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury
Securities of such series contemplated by the succeeding sentence representing
such Holder's interest therein. As soon as practicable after transfer to the
Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the
Unit Agent shall, on behalf of all Holders who, by virtue of the preceding
sentence, will not be entitled to a portion of the Treasury Securities of any
series to which they would otherwise be entitled, aggregate and sell the
Treasury Securities of such series representing such portion to or through one
or more U.S. government securities dealers at then prevailing prices, deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales and, until the net
proceeds therefrom have been distributed to the Holders entitled thereto or
their designees, hold such proceeds in trust for such Holders.
ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock.
Each Purchase Contract underlying a Unit shall obligate the Holder of such
Unit to purchase, and the Company to sell, on the Stock Purchase Date, at a
price equal to the Stated Amount, a number of shares of Common Stock equal to
the Settlement Rate, unless, on or prior to the Stock Purchase Date, there shall
have occurred a Termination Event. The "Settlement Rate" is equal to (a) if the
Applicable Market Value (as defined below) is greater than or equal to $38.5063
(the "Threshold Appreciation Price"), 0.8197 of a share of Common Stock per
Purchase Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than the Stated Amount, a fractional share of
Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded upward or downward to the nearest 1/10,000th of
a share or, if there is not a nearest 1/10,000th of a share, to the next lower
1/10,000th of a share) and (c) if the Applicable Market Value is less than or
equal to the Stated Amount, one share of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in Section 506. As provided in
Section 509, no fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Prices per
share of Common Stock on each of the twenty consecutive Trading Days ending on
the last Trading Day immediately preceding the Stock Purchase Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the over-the-
counter market as reported by the National Quotation Bureau or similar
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized investment
banking firm retained for this purpose by the Company. A "Trading Day" means a
day on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Holder of a Unit Certificate evidencing Normal Units, by his accept-
ance thereof, irrevocably authorizes the Unit Agent to enter into and perform
the underlying Purchase Contracts and Call Options on his behalf as his
attorney-in-fact, agrees to be bound by the terms and provisions thereof,
covenants and agrees to perform his obligations under such Purchase Contracts
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
underlying such Normal Units pursuant to the Pledge Agreement. Each Holder of a
Unit Certificate evidencing Stripped Units, by his acceptance thereof,
irrevocably authorizes the Unit Agent to enter into and perform the underlying
Purchase Contracts on his behalf as his attorney-in-fact, agrees to be bound by
the terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions of the
Principal Agreements, irrevocably authorizes the Unit Agent to perform the
Pledge Agreement on his behalf as his attorney-in-fact, and consents to and
agrees to be bound by the Pledge of the Pledged Securities underlying such
Stripped Units pursuant to the Pledge Agreement. Each Holder of Units, by his
acceptance thereof, further irrevocably covenants and agrees that, unless such
Holder satisfies its obligations to the Company under the Purchase Contracts
underlying such Units as provided in Section 504(a), then to the extent and in
the manner provided in Section 504(b) and the Pledge Agreement, but subject to
the terms thereof, payments in respect of all or a portion of the principal of
or proceeds from the Pledged Securities on the Stock Purchase Date shall be paid
by the Collateral Agent to the Company in satisfaction of such Holder's
obligations under such Purchase Contract and such Holder shall acquire no right,
title or interest in such payments.
Upon registration of transfer of a Unit Certificate, the transferee shall
be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and any Call Options
evidenced thereby and by the Pledge Agreement and the transferor shall be
released from all such obligations evidenced by the Unit Certificate so
transferred. The Company covenants and agrees, and each Holder of a Unit
Certificate, by his acceptance thereof, likewise covenants and agrees, to be
bound by the provisions of this paragraph.
Section 502. Contract Fees.
Subject to Section 503, if any Contract Fees are or will be payable by the
Company to the Holders, the Company shall pay, prior to 1:00 p.m., New York City
time, on each Quarterly Payment Date to and including the Stock Purchase Date,
the Contract Fees payable in respect of each Purchase Contract to the Person in
whose name the Unit Certificate (or one or more Predecessor Unit Certificates)
evidencing such Purchase Contract is registered at the close of business on the
Record Date next preceding such Quarterly Payment Date. The Company's
obligations with respect to such Contract Fees are hereby expressly subordinated
in right of payment to the prior payment in full of all Senior Indebtedness, to
the extent and in the manner set forth in the Indenture.
Each Unit Certificate delivered under this Agreement upon registration of
transfer of, in exchange for or in lieu of any other Unit Certificate shall
carry the rights to receive and obligations to pay Contract Fees accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by
such other Unit Certificate.
Section 503. Deferral of Payment Dates For Contract Fee.
So long as no default in the Company's obligations under the Principal
Agreements has occurred and is continuing, the Company shall have the right, at
any time prior to the Stock Purchase Date, to defer the payment of any or all of
the Contract Fees otherwise payable by the Company on any Quarterly Payment
Date, but only if the Company shall give the Holders and the Unit Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) at least five Business Days prior to the earlier of (a) the next
succeeding Quarterly Payment Date or (b) the date the Company is required to
give notice of the Record Date or Quarterly Payment Date with respect to payment
of such Contract Fee to the NYSE or other applicable self-regulatory
organization or to Holders, or (c) the Record Date for such Quarterly Payment
Date. Any Contract Fees so deferred shall bear additional Contract Fees thereon
at a rate per annum equal to the Deferral Rate (computed on the basis of a 360-
day year of twelve 30-day months), compounding on each succeeding Quarterly
Payment Date, until paid in full. Deferred Contract Fees (and additional Con-
tract Fees accrued thereon) shall be due on the next succeeding Quarterly
Payment Date except to the extent that payment is deferred pursuant to this
Section. No Contract Fees may be deferred to a date that is after the Stock
Purchase Date.
In the event the Company exercises its option to defer the payment of
Contract Fees payable by it, then, until all deferred Contract Fees (including
additional Contract Fees accrued thereon) have been paid in full, the Company
shall not (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 capital stock, (b) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu with or junior in right of payment to the Contract Fees or
(c) make any guarantee payments with respect to any guarantee by the Company of
any securities of any subsidiary of the Company if such guarantee ranks pari
passu or junior in right of payment to the Contract Fees (other than, in the
case of clauses (a), (b) and (c), (i) dividends or distributions in shares of,
or options, warrants or rights to subscribe for or purchase shares of, common
stock of the Company, (ii) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (iii) payments under the Company's guarantee of the QUIPS,
(iv) as a result of a reclassification of the Company's capital stock solely
into shares of one or more classes or series of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, (v) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the securities being
converted or exchanged and (vi) purchases of common stock in connection with the
satisfaction by the Company of its obligations under any of the Company's
benefit plans for its and its subsidiaries' directors, officers or employees or
any of the company's dividend reinvestment plans).
Section 504. Payment of Purchase Price.
(a) A Holder of Units shall, by no later than 10:00 a.m., New York City
time, on the Stock Purchase Date, deliver to the Unit Agent payment of the
purchase price for the shares of Common Stock to be purchased pursuant to the
Purchase Contracts underlying such Units, which payment shall be made in lawful
money of the United States by certified or cashier's check payable to the order
of the Company in immediately available funds in an amount equal to the
aggregate Stated Amount of such Holder's Units.
By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit
Agent shall (i) transfer to the Company all of the payments the Company is
entitled to receive as contemplated by the preceding sentence, (ii) notify the
Collateral Agent and the Company as to the number of Normal Units and the number
of Stripped Units, respectively, with respect to which payment has been received
as aforesaid (such Units being collectively referred to as "Paid Units") and the
number of Normal Units and the number of Stripped Units, respectively, with
respect to which payment has not been received as aforesaid (such Units being
collectively referred to as "Unpaid Units"), and (iii) request the Collateral
Agent (with notice of such request to the Company) to release the Pledged
Securities underlying the Paid Units (or, in the case of Treasury Securities,
the cash payments received thereon) from the Pledge and transfer such released
Pledged Securities (or such cash) to the Unit Agent for delivery to the Holders
of such Units entitled thereto, free and clear of the Company's security
interest therein.
By 1:00 p.m., New York City time, on the Stock Purchase Date, the
Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply
with the request referred to in clause (iii) of the preceding sentence (subject
to the Company's right under the Pledge Agreement to prevent the Collateral
Agent from doing so to the extent the aggregate amount the Company has received
as contemplated by clause (i) of the preceding sentence is less than the
aggregate amount payable with respect to the Units referred to in such request).
The Unit Agent shall thereupon, subject to its receipt from the Collateral Agent
of the Pledged Securities (or cash) referred to in such request and subject to
Section 305, transfer such released Pledged Securities (or cash) to the
respective Holders entitled thereto in accordance with the settlement
instructions specified in the form of Settlement Instructions appearing on the
Unit Certificates evidencing the Paid Units; PROVIDED, HOWEVER, that if any such
Unit Certificate is not surrendered to the Unit Agent with the form of
Settlement Instructions thereon duly completed and executed, the Unit Agent
shall hold such Pledged Securities (or cash), and any distributions or interest
received on such Pledged Securities, as custodian for the Holder entitled
thereto, to be delivered to such Holder (without any interest thereon and
subject to Section 305) upon surrender of such Unit Certificate to the Unit
Agent (with the form of Settlement Instructions thereon duly completed and
executed).
(b) With respect to each Holder's Unpaid Units, pursuant to the terms of
the Pledge Agreement,
(i) (x) if QUIPS underlie such Unpaid Units, the Collateral Agent, on
behalf of such Holder, shall exercise such Holder's right under the
Declaration to require the Trust to distribute Junior Subordinated
Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of such QUIPS, in exchange for such QUIPS, and, upon
receiving such Junior Subordinated Debentures, shall thereupon, as put
agent ("Put Agent"), exercise the Junior Subordinated Debenture Put Option
with respect thereto and (y) if Junior Subordinated Debentures underlie
such Unpaid Units, the Collateral Agent, on behalf of such Holder, shall,
as Put Agent, exercise the Junior Subordinated Debenture Put Option with
respect thereto;
(ii) the Collateral Agent shall deliver to the Company, out of the
proceeds from the exercise of such Junior Subordinated Debenture Put Option
or, if Treasury Securities underlie such Unpaid Units, the proceeds from
the payment of such Treasury Securities at maturity, an amount equal to the
aggregate Stated Amount of such Unpaid Units plus the unpaid Contract Fees,
if any, payable by such Holder to the Company in respect of such Unpaid
Units to satisfy in full such Holder's obligations under such Unpaid Units;
and
(iii) the Collateral Agent shall remit to the Unit Agent, on
behalf of such Holder, the remainder of the proceeds, if any, from the
Pledged Securities underlying such Unpaid Units for distribution to such
Holder.
The amount referred to in clause (iii) above shall, subject to receipt thereof
by the Unit Agent from the Collateral Agent, be paid to the Person in whose name
the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing
such Unpaid Units is registered at the close of business on the Record Date next
preceding the Stock Purchase Date.
(c) Each Holder will be entitled to apply any unpaid amounts owing by the
Company to such Holder as a set-off to reduce, dollar-for-dollar, any amounts
then owing by such Holder to the Company in respect of such Holder's Units, and
such set-off amounts will be treated for all purposes as having been paid in
full by such Holder as required hereby.
(d) The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder of the related Unit unless the Company shall have received payment in
full of the aggregate purchase price for the shares of Common Stock to be
purchased thereunder in the manner herein set forth (either directly or by
operation of set-off as contemplated by the preceding sentence).
Section 505. Issuance of Shares of Common Stock.
As promptly as practicable on or after the Stock Purchase Date, upon
receipt by the Company of payment in full of the aggregate purchase price for
the shares of Common Stock purchased by the Holders pursuant to the foregoing
provisions of this Article, and subject to Section 506(b), the Company shall
deposit with the Unit Agent, for the benefit of the Holders of the Units, one or
more certificates representing the shares of Common Stock registered in the name
of the Unit Agent (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter referred to as the
"Purchase Contract Settlement Fund") to which the Holders are entitled
hereunder. Subject to the foregoing, upon surrender of a Unit Certificate to
the Unit Agent on or after the Stock Purchase Date, with the form of Settlement
Instructions thereon duly completed and executed, the Holder of such Unit
Certificate shall be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is
entitled to receive pursuant to the provisions of this Article Five (after
taking into account all Units then held by such Holder) together with cash in
lieu of fractional shares as provided in Section 509 and any dividends or
distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Unit
Certificate so surrendered shall forthwith be cancelled. Such shares shall be
registered in the name of the Holder or the Holder's designee as specified in
the form of Settlement Instructions appearing on the surrendered Unit
Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract are
to be registered to a Person other than the Person in whose name the Unit
Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Unit Certificate evidencing
such Purchase Contract or has established to the satisfaction of the Company
that such tax either has been paid or is not payable.
Section 506. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other distribution
on any class of Common Stock of the Company in Common Stock, the Settlement Rate
in effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all
holders of its Common Stock (not being available on an equivalent basis to
Holders of the Units upon settlement of the Purchase Contracts underlying such
Units) entitling them, for a period expiring within 45 days after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the Common Stock
on the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants (other than pursuant to a dividend reinvestment
plan), the Settlement Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Settlement Rate by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such Current Market Price
and the denominator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase, such increase
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company shall not issue any such rights, options or
warrants in respect of shares of Common Stock held in the treasury of the
Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Settlement Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a smaller number
of shares of Common Stock, the Settlement Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in paragraph (2) of
this Section, any dividend or distribution paid exclusively in cash and any
dividend or distribution referred to in paragraph (1) of this Section), the Set-
tlement Rate shall be increased so that the same shall equal the rate determined
by dividing the Settlement Rate in effect immediately prior to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be the
Current Market Price per share of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Unit Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall all be such Current Market Price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of stock-
holders entitled to receive such distribution. In any case in which this para-
graph (4) is applicable, paragraph (2) of this Section shall not be applicable.
(5) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock cash (excluding any cash that is distributed in a
Reorganization Event to which Section 506(b) applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, when combined with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution to the extent
such amount has not already been applied in a prior adjustment pursuant to this
paragraph (5) and (II) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), as of the date of expiration of such
tender or exchange offer, of the consideration paid in respect of any tender or
exchange offer by the Company or any of its subsidiaries for all or any portion
of the Common Stock expiring within the 12 months preceding the date of payment
of such distribution and in respect of which no adjustment pursuant to paragraph
(6) of this Section has been made, exceeds 12.5% of the product of the Current
Market Price per share of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such distribution times the
number of shares of Common Stock outstanding on such date (such excess portion
of such distribution being herein referred to as the "Excess Amount"), the
Settlement Rate shall be increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which (i) the numerator
shall be the Current Market Price per share of the Common Stock on the date
fixed for such determination less an amount equal to (x) such Excess Amount
divided by (y) the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and (ii) the denominator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(6) In case the Company or any subsidiary of the Company shall consummate
a tender or exchange offer for all or any portion of the Common Stock and pay an
aggregate consideration in respect thereof having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that, when combined with (I) the aggregate
of the cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board Resolution), as
of the date of expiration of such tender or exchange offer, of the consideration
paid in respect of any other tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of the Common Stock expiring within the
12 months preceding the date of expiration of such tender or exchange offer and
in respect of which no adjustment pursuant to this paragraph (6) has been made
and (II) the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within 12 months preceding the
date of expiration of such tender or exchange offer to the extent such amount
has not already been applied in a prior adjustment pursuant to paragraph (5) of
this Section, exceeds 12.5% of the product of the Current Market Price per share
of the Common Stock on the date of expiration of such tender or exchange offer
times the number of shares of Common Stock outstanding (including any tendered
shares) at the close of business on the date of such expiration, the Settlement
Rate shall be increased so that the same shall equal the rate determined by
dividing the Settlement Rate in effect immediately prior to the close of
business on the date of such expiration by a fraction of which (i) the
numerator shall be (A) the product of (I) the Current Market Price per share of
the Common Stock on the date of such expiration and (II) the number of shares of
Common Stock outstanding (including any tendered shares) at the close of
business on the date of such expiration less (B) the amount of cash plus the
fair market value (determined as aforesaid) of the aggregate consideration paid
in respect of such tender or exchange offer and (ii) the denominator shall be
the product of (A) the Current Market Price per share of the Common Stock on the
date of such expiration and (B) the number of shares of Common Stock outstanding
(including any tendered shares) at the close of business on the date of such
expiration less the number of shares acquired pursuant to such tender or
exchange, such adjustment to become effective immediately prior to the opening
of business on the day following the date of such expiration.
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 506(b) applies) shall be deemed to involve
(i) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (ii) a subdivision or combina-
tion, as the case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) The "Current Market Price" per share of Common Stock on any day means
the average of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term " ex' date", when used
with respect to any issuance or distribution, shall mean the first date on which
the Common Stock trades regular way on such exchange or in such market without
the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or, if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment
in the Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; PROVIDED, HOWEVER, that
any adjustments which by reason of this subparagraph are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
If an adjustment is made to the Settlement Rate pursuant to paragraph (1), (2),
(3), (4), (5), (6), (7) or (10) of this Section 506(a), an adjustment shall also
be made to the Applicable Market Value solely to determine which of clauses (a),
(b) or (c) of the definition of Settlement Rate in Section 501 will apply on the
Stock Purchase Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be the
Settlement Rate immediately after such adjustment pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7) or (10) of this Section 506(a) and the denominator
shall be the Settlement Rate immediately before such adjustment.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event.
In the event of (i) any consolidation or merger of the Company with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, securities or
other property of the Company or another corporation), (ii) any sale, transfer,
lease or conveyance to another Person of the property of the Company as an
entirety or substantially as an entirety, (iii) any statutory exchange of
securities of the Company with another Person (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up of the
Company (any such event, a "Reorganization Event"), the Settlement Rate will be
adjusted to provide that each Holder of Units will receive on the Stock Purchase
Date with respect to each Purchase Contract forming a part thereof, the kind and
amount of securities, cash and other property receivable upon such
Reorganization Event by a Holder of the number of shares of Common Stock
issuable on account of each Purchase Contract if the Stock Purchase Date had
occurred immediately prior to such Reorganization Event, assuming such Holder of
Common Stock is not a Person with which the Company consolidated or into which
the Company merged or which merged into the Company or to which such sale or
transfer was made, as the case may be ("constituent Person"), or an Affiliate of
a constituent Person, and failed to exercise his rights of election, if any, as
to the kind or amount of securities, cash and other property receivable upon
such Reorganization Event (PROVIDED that if the kind or amount of securities,
cash and other property receivable upon such Reorganization Event is not the
same for each share of Common Stock held immediately prior to such
Reorganization Event by other than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In the event
of such a Reorganization Event, the Person formed by such consolidation, merger
or exchange or the Person which acquires the assets of the Company or, in the
event of a liquidation or dissolution of the Company, the Company or a
liquidating trust created in connection therewith, shall execute and deliver to
the Unit Agent an agreement supplemental hereto providing that the Holders of
each Outstanding Unit shall have the rights provided by this Section 506. Such
supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
Section 507. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance with
Section 506 and prepare and transmit to the Unit Agent an Officers'
Certificate setting forth the Settlement Rate, the method of calculation
thereof in reasonable detail, and the facts requiring such adjustment and
upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event that
permits or requires an adjustment to the Settlement Rate pursuant to
Section 506 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Units of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the adjustment to the
Settlement Rate was determined and setting forth the adjusted Settlement
Rate.
(b) The Unit Agent shall not at any time be under any duty or
responsibility to any holder of Units to determine whether any facts exist which
may require any adjustment of the Settlement Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed in making the same. The Unit Agent shall not be accountable
with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at the time be issued
or delivered with respect to any Purchase Contract; and the Unit Agent makes no
representation with respect thereto. The Unit Agent shall not be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock pursuant to a Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article.
Section 508. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Stock Purchase Date.
If Unit Certificates evidencing more than one Purchase Contract shall be
surrendered for settlement at one time by the same Holder, the number of full
shares of Common Stock which shall be delivered upon settlement shall be
computed on the basis of the aggregate number of Purchase Contracts evidenced by
the Unit Certificates so surrendered. Instead of any fractional share of Common
Stock which would otherwise be deliverable upon settlement of any Purchase Con-
tracts on the Stock Purchase Date, the Company, through the Unit Agent, shall
make a cash payment in respect of such fractional interest in an amount equal to
such fraction times the Applicable Market Value. The Company shall provide the
Unit Agent from time to time with sufficient funds to permit the Unit Agent to
make all cash payments required by this Section 508 in a timely manner.
Section 509. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts; PROVIDED, HOWEVER, that the Company shall not be
required to pay any such tax or taxes which may be payable in respect of any
exchange of or substitution for a Unit Certificate evidencing a Purchase
Contract or any issuance of a share of Common Stock in a name other than that of
the registered Holder of a Unit Certificate surrendered in respect of the
Purchase Contracts evidenced thereby, other than in the name of the Unit Agent,
as custodian for such Holder, and the Company shall not be required to issue or
deliver such share certificates or Unit Certificates unless or until the Person
or Persons requesting the transfer or issuance thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
Section 510. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Fees or to settle such
Purchase Contracts pursuant to this Article Five, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase
Date, a Termination Event shall have occurred. Upon the occurrence of a
Termination Event, the Company shall give written notice to the Unit Agent, the
Collateral Agent and the Holders, at their addresses as they appear in the Unit
Registers. Upon and after the occurrence of a Termination Event, the provisions
of this Article Five (other than this Section 510) shall automatically terminate
and be of no further force or effect, and the Unit Certificates shall thereafter
represent only the right to receive the Pledged Securities forming a part of the
Units theretofore evidenced thereby in accordance with the provisions of
Section 402 and the Pledge Agreement.
ARTICLE SIX
Remedies
Section 601. Unconditional Rights of Holders.
Notwithstanding any other provision in this Agreement, the Holder of any
Unit shall have the right, which is absolute and unconditional but which is
subject to Section 510, to purchase Common Stock pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Fees payable by
the Company to such Holder with respect to such Purchase Contract and, in each
such case, to institute suit for the enforcement of any such right, and such
rights shall not be impaired without the consent of such Holder.
Section 602. Restoration of Rights and Remedies.
If any Holder of Units has instituted any proceeding to enforce any
right or remedy under this Agreement and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such
Holder shall continue as though no such proceeding had been instituted.
Section 603. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of mutilated,
destroyed, lost or stolen Unit Certificates in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Holders
of Units is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 604. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy shall
impair any such right or remedy or constitute a waiver of any such right. Every
right and remedy given by this Article or by law to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by such Holders.
Section 605. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of any Unit by his
acceptance of the Unit Certificate evidencing such Unit 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 Agreement, or in any suit against
the Unit Agent for any action taken, suffered or omitted by it as Unit Agent,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; PROVIDED that the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the Unit
Agent, to any suit instituted by any Holder of Units, or group of Holders,
holding in the aggregate more than 10% of the number of Outstanding Units, or to
any suit instituted by any Holder of Units for the enforcement of payments due
in respect of Pledged Securities or Contract Fees on Purchase Contracts
underlying such Units on or after the respective due dates therefor, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting a part of such Units.
Section 606. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; 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 Unit Agent or the Holders, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
The Unit Agent
Section 701. Certain Duties and Responsibilities.
(a)(i) The Unit Agent undertakes to perform, with respect to the
Units, such duties and only such duties as are specifically set forth in
this Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Unit Agent; and
(ii) in the absence of bad faith or negligence on its part, the Unit
Agent may, with respect to the Units, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Unit Agent and conforming to the
requirements of this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Unit Agent, the Unit Agent shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Unit
Agent from liability for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Unit Agent shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Unit Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement shall require the Unit Agent
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.
(c) Whether or not therein expressly so provided, every provision of this
Agreement relating to the conduct or affecting the liability of or affording
protection to the Unit Agent shall be subject to the provisions of this Section.
Section 702. Notice of Default.
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Unit Agent has actual
knowledge, the Unit Agent shall transmit by mail to all Holders of Units, as
their names and addresses appear in the Unit Registers, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 703. Certain Rights of Unit Agent.
Subject to the provisions of Section 701:
(a) the Unit Agent may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Unit Agent
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Unit Agent (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate of the Company;
(d) the Unit Agent may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Unit Agent 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 Unit Agent, in its discretion, may make reasonable
further inquiry or investigation into such facts or matters related to the
issuance of the Units and the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Unit Agent shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and promises of the Company,
personally or by agent or attorney; and
(f) the Unit Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
and the Unit Agent 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 704. Not Responsible for Recitals or Issuance of Units.
The recitals contained herein and in the Unit Certificates shall be taken
as the statements of the Company and the Unit Agent assumes no responsibility
for their correctness. The Unit Agent makes no representations as to the
validity or sufficiency of this Agreement or of the Units. The Unit Agent shall
not be accountable for the use or application by the Company of the proceeds in
respect of the QUIPS or Purchase Contracts.
Section 705. May Hold Units.
Any Unit Registrar or any other agent of the Company, or the Unit Agent, in
its individual or any other capacity, may become the owner or pledgee of Units
and may otherwise deal with the Company with the same rights it would have if it
were not Unit Registrar or such other agent, or the Unit Agent.
Section 706. Money Held in Trust.
Money held by the Unit Agent in trust hereunder need not be segregated from
other funds except to the extent required by law. The Unit Agent shall be under
no obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 707. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Unit Agent from time to time reasonable
compensation for all services rendered by it hereunder as the Company and
the Unit Agent shall from time to time agree in writing;
(b) except as otherwise expressly provided herein, to reimburse the
Unit Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Unit Agent in accordance with any
provision of this 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; and
(c) to indemnify the Unit Agent and any predecessor Unit Agent and
their agents for, and to hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including taxes (other than
taxes based upon, measured by or determined by the income of the Unit
Agent), incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration 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.
Section 708. Corporate Unit Agent Required; Eligibility.
There shall at all times be an Unit Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in the Borough of Man-
hattan, The City of New York, if there be such a corporation in the Borough of
Manhattan, The City of New York qualified and eligible under this Article and
willing to act on reasonable terms. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Unit Agent shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 709. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 710.
(b) The Unit Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Unit Agent required by Section 710 shall
not have been delivered to the Unit Agent within 30 days after the giving of
such notice of resignation, the resigning Unit Agent may petition any court of
competent jurisdiction for the appointment of a successor Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Units delivered to the Unit Agent and the
Company.
(d) If at any time
(i) the Unit Agent fails to comply with Section 310(b) of the TIA, as
if the Unit Agent were an indenture trustee under an indenture qualified
under the TIA, after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Unit for at least six months,
or
(ii) the Unit Agent shall cease to be eligible under Section 708 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) the Unit Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Unit Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Unit Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Unit Agent, or (y) any Holder who has been a bona fide Holder of a Unit 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 Unit Agent
and the appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 710. If no
successor Unit Agent shall have been so appointed by the Company and accepted
appointment in the manner required by Section 710, any Holder who has been a
bona fide Holder of a Unit 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 Unit Agent.
(f) The Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Units as their names and
addresses appear in the Unit Registers. Each notice shall include the name of
the successor Unit Agent and the address of its Corporate Trust Office.
Section 710. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Unit Agent, every
such successor Unit Agent so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Unit Agent an instrument accepting such appoint-
ment, and thereupon the resignation or removal of the retiring Unit Agent shall
become effective and such successor Unit Agent, without any further act, deed or
conveyance, shall become vested with all the rights, powers, agencies and duties
of the retiring Unit Agent; but, on the request of the Company or the successor
Unit Agent, such retiring Unit Agent shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Unit Agent all the
rights, powers and trusts of the retiring Unit Agent and shall duly assign,
transfer and deliver to such successor Unit Agent all property and money held by
such retiring Unit Agent hereunder.
(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the
time of such acceptance such successor Unit Agent shall be qualified and
eligible under this Article.
Section 711. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Unit 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 the Unit Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Unit Agent, shall be the successor of the Unit Agent 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 Unit Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Unit Agent then in office, any successor by merger, conversion or consolidation
to such Unit Agent may adopt such authentication and execution and deliver the
Unit Certificates so authenticated and executed with the same effect as if such
successor Unit Agent had itself authenticated and executed such Units.
Section 712. Preservation of Information; Communications to Holders.
(a) The Unit Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Unit Agent in
its capacity as Unit Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Unit Agent, and furnish to the Unit Agent reasonable proof that
each such applicant has owned a Unit for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Units and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Unit Agent shall, within five Business Days after the receipt of such
application, afford such applicants access to the information preserved at the
time by the Unit Agent in accordance with Section 712(a).
(c) Every Holder of Units, by receiving and holding the Unit Certificates
evidencing the same, agrees with the Company and the Unit Agent that none of the
Company, the Unit Agent nor any agent of any of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 712(b), regardless of the
source from which such information was derived.
Section 713. No Obligations of Unit Agent.
Except to the extent otherwise provided in this Agreement, the Unit Agent
assumes no obligations and shall not be subject to any liability under this
Agreement or any Purchase Contract or Call Option in respect of the obligations
of the Holder of any Unit thereunder. The Company agrees, and each Holder of a
Unit Certificate, by his acceptance thereof, shall be deemed to have agreed,
that the Unit Agent's execution of the Unit Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and that
the Unit Agent shall have no obligation to perform such Purchase Contracts or
Call Options on behalf of the Holders, except to the extent expressly provided
in Article Five hereof.
Section 714. Tax Compliance.
(a) The Unit Agent, on its own behalf and on behalf of the Company, will
comply with all applicable certification, information reporting and withholding
(including "backup" withholding) requirements imposed by applicable tax laws,
regulations or administrative practice with respect to (i) any payments made
with respect to the Units or (ii) the issuance, delivery, holding, transfer,
redemption or exercise of rights under the Units. Such compliance shall
include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
(b) The Unit Agent shall comply with any direction received from the Com-
pany with respect to the application of such requirements to particular payments
or Holders or in other particular circumstances, and may for purposes of this
Agreement rely on any such direction in accordance with the provisions of
Section 701(a)(ii) hereof.
(c) The Unit Agent shall maintain all appropriate records documenting com-
pliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the parties to any Principal Agreement,
at any time and from time to time, may enter into one or more agreements
supplemental hereto or thereto, in form satisfactory to such parties, for any of
the following purposes:
(1) to evidence the succession of another Person to any such party,
and the assumption by any such successor of the covenants of such party
herein or therein and under the Units; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment here-
under by a successor Unit Agent; or
(4) to evidence the succession of another Person to the rights of the
Call Option Holder under the Call Options, in connection with a transfer of
such rights by the Call Option Holder to such Person; or
(5) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 506(b); or
(6) to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions
herein or therein, or to make any other provisions with respect to such
matters or questions arising under such Principal Agreement, provided such
action shall not adversely affect the interests of the Holders.
Section 802. Supplemental Agreements with Consent of Holders.
With the consent of the Holders of not less than a majority of the
Outstanding Units (or, with respect to modifications that adversely affect only
the Holders of Normal Units or only the Holders of Stripped Units, with the
consent of the Holders of not less than a majority of the Outstanding Units that
comprise Normal Units or Stripped Units, as the case may be), by Act of said
Holders delivered to the parties to any Principal Agreement, such parties (when
authorized, in the case of the Company, by a Board Resolution) may enter into an
agreement or agreements supplemental to such Principal Agreement for the purpose
of modifying in any manner the terms of the Units, or the provisions of such
Principal Agreement or the rights of the Holders in respect of the Units;
PROVIDED, HOWEVER, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Unit affected thereby,
(1) change any payment date;
(2) change the amount or type of Pledged Securities underlying a
Unit, impair the right of the Holder of any Unit to receive distributions
or interest payments on the underlying Pledged Securities or otherwise
adversely affect the Holder's rights in or to such Pledged Securities
(including the rights of Holders of Normal Units to effect a Stripped Unit
Creation);
(3) reduce the Contract Fees or other amounts receivable by Holders
in respect of Units or increase other amounts payable by Holders in respect
of Units or change any place where, or the coin or currency in which, any
Contract Fees or other amounts receivable or payable in respect of Units
are payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Stock
Purchase Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the amount payable on exercise of any Call Option, extend
the Call Option Expiration Date (as defined in the Call Option Agreement)
or otherwise adversely affect any Holder's rights under any Call Option; or
(7) reduce the percentage of the Outstanding Units the consent of
whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any supplemental
agreement to any Principal Agreement. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental agreement, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be cancelled and of no further effect.
Section 803. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any supple-
mental agreement permitted by this Article or the modifications thereby of the
agencies created by the Principal Agreements, the Unit Agent shall be entitled
to receive and (subject to Section 701) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement. The Unit Agent may, but
shall not be obligated to, enter into any such supplemental agreement which
affects the Unit Agent's own rights, duties or immunities under this Agreement
or otherwise.
Section 804. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article, the
relevant Principal Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of such Principal Agreement for all
purposes; and every Holder of Unit Certificates theretofore or thereafter
authenticated, executed on behalf of the Holder and delivered hereunder shall be
bound thereby.
Section 805. Reference to Supplemental Agreements.
Unit Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Unit Agent, bear a notation in form
approved by the Unit Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Unit Certificates so modified
as to conform, in the opinion of the Unit Agent and the Company, to any such
supplemental agreement may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Unit Agent
in exchange for Outstanding Unit Certificates evidencing the same number of
Normal Units or Stripped Units, as the case may be.
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any other
Person or sell or convey all or substantially all of its assets to any Person,
except that the Company may merge or consolidate with, or sell or convey all or
substantially all of its assets to, any other Person, provided that (a) the
Company shall be the continuing corporation, or the successor (if other than the
Company) shall be a corporation organized and existing under the laws of the
United States of America or a State thereof and such corporation shall assume
the obligations of the Company under the Purchase Contracts and the Pledge
Agreement by one or more supplemental agreements in form satisfactory to the
Unit Agent and, in the case of the Pledge Agreement, the Collateral Agent,
executed and delivered to the Unit Agent, and, in the case of the Pledge
Agreement, the Collateral Agent by such corporation, and (b) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any covenant or condition under any Principal Agreement or under
any of the Units.
Section 902. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named in the Principal Agreements as the Company. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of AmerUs Life Holdings, Inc., any or all of the Unit
Certificates evidencing Units issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Unit Agent; and, upon the
order of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Agreement prescribed, the Unit
Agent shall authenticate and execute on behalf of the Holders and deliver any
Unit Certificates which previously shall have been signed and delivered by the
officers of the Company to the Unit Agent for authentication and execution, and
any Unit Certificate evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Unit Agent for that
purpose. All the Unit Certificates so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Unit Certificates
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Unit Certificates had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such change
in phraseology and form (but not in substance) may be made in the Unit
Certificates evidencing Units thereafter to be issued as may be appropriate.
Section 903. Opinion of Counsel to Unit Agent.
The Unit Agent, subject to Sections 701 and 703, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article.
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from time
to time of the Units that it will duly and punctually perform its obligations
under the Purchase Contracts in accordance with the terms of the Purchase
Contracts and this Agreement.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New York
an office or agency where Unit Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement and for transfer of
Pledged Securities upon occurrence of a Termination Event, where Unit
Certificates may be surrendered for registration of transfer or exchange or for
effecting Stripped Unit Creations, where payment of Contract Fees payable by the
Company to the Holders may be made and where notices and demands to or upon the
Company in respect of the Units and this Agreement may be served. The Company
will give prompt written notice to the Unit Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Unit Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Unit Agent 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 where Unit Certificates may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Unit Agent of any such designation or rescission and of
any change in the location of any such other office or agency. The Company
hereby designates as the place of payment for the Units the Corporate Trust
Office and appoints the Unit Agent at its Corporate Trust Office as paying agent
in such city.
Section 1003. Company to Reserve Common Stock.
The Company shall at all times prior to the Stock Purchase Date reserve and
keep available, free from preemptive rights, out of its authorized but unissued
Common Stock the full number of shares of Common Stock issuable against tender
of payment in respect of all Purchase Contracts underlying the Units.
Section 1004. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of the Purchase Contracts underlying the
Units will, upon issuance, be newly issued (i.e., not issued out of treasury
shares) and be duly authorized, validly issued, fully paid and nonassessable.
Section 1005. Statements of Officers of the Company as to Default.
The Company will deliver to the Unit Agent, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AMERUS LIFE HOLDINGS, INC.
By: /s/ Roger K. Brooks
------------------------------------------
Roger K. Brooks
Chairman, President and
Chief Executive Officer
FIRST UNION NATIONAL BANK, as Unit Agent
By: /s/ Shawn K. Bednasek
------------------------------------------
Shawn K. Bednasek
Vice President
<PAGE>
EXHIBIT A
Form of Normal Unit Certificate
AMERUS LIFE HOLDINGS, INC.
7.00% Adjustable Conversion-rate Equity Security Units
(Stated Amount $31.5625 per Normal Unit)
CUSIP No. --------
No. ----- ------Normal Units
This Unit Certificate certifies that is the
registered Holder of the number of Normal Units set forth above. Each Normal
Unit represents the right to purchase Common Stock under a Purchase Contract
with AmerUs Life Holdings, Inc., an Iowa corporation (the "Company"), together
with ownership of the QUIPS-SM-* or other Pledged Securities pledged to secure
the obligations referred to in (a) and (b) below, subject to (a) the obligations
owed to the Company under such Purchase Contract, (b) for so long as any Call
Options remain exercisable, the obligations owed to the Call Option Holder under
a Call Option and (c) the pledge arrangements securing the foregoing
obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of July 27, 1998 (the "Master Unit Agreement"), between the
Company and First Union National Bank, as unit agent (herein called the "Unit
Agent"). All terms used herein which are not defined herein and which are
defined in the Master Unit Agreement have the meanings set forth therein. Each
Call Option evidenced hereby is governed by the Call Option Agreement. The
Pledge of the Pledged Securities evidenced hereby is governed by the Pledge
Agreement. Reference is hereby made to the Master Unit Agreement, the Call
Option Agreement and the Pledge Agreement, and any supplemental agreements
thereto, for a description of the respective rights, limitations of rights,
obligations, duties and immunities thereunder of the Unit Agent, the Company,
the Call Option Holder, the Collateral Agent and the Holders. The summary
contained herein is qualified in its entirety by the provisions of the Principal
Agreements, and the Principal Agreements shall govern the rights of the parties
to the extent that there is any conflict between such summary and such
provisions.
---------------------
* QUIPS is a servicemark of Goldman, Sachs & Co.<PAGE>
Each Purchase Contract evidenced hereby obligates the Holder of this Unit
Certificate to purchase, and the Company to sell, on July 27, 2001 (the "Stock
Purchase Date"), at a price equal to $31.5625 (the "Stated Amount"), a number of
shares of Class A Common Stock, no par value per share, having such terms as set
forth in the Company's certificate of incorporation, as amended from time to
time ("Common Stock"), of the Company equal to the Settlement Rate, unless on
or prior to the Stock Purchase Date there shall have occurred a Termination
Event. The "Settlement Rate" is equal to (a) if the Applicable Market Value (as
defined in the Master Unit Agreement) is greater than or equal to $38.5063 (the
"Threshold Appreciation Price"), 0.8197 of a share of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than the Stated Amount, a fractional share of
Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded to the nearest 1/10,000th of a share or, if
there is no nearest 1/10,000th of a share, rounded downward to the nearest
1/10,000th of a share) and (c) if the Applicable Market Amount is less than or
equal to the Stated Amount, one share of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Master Unit Agreement. No
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, but instead of issuing any fractional interest the Company shall make
a cash payment as provided in the Master Unit Agreement. The purchase price for
the shares of Common Stock to be purchased pursuant to each Purchase Contract
evidenced hereby, if not paid by 10:00 a.m., New York City time, on the Stock
Purchase Date, shall be paid by application of payments received by the Company
on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge
Agreement in respect of the Pledged Securities pledged to secure such Holder's
obligations under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Normal Units shall thereafter represent
the right to receive the Pledged Securities forming a part of such Normal Units
in accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
The Call Options evidenced hereby entitle the Call Option Holder to acquire
the QUIPS (or Junior Subordinated Debentures substituted therefor) evidenced
hereby on or before April 27, 2001 unless prior to the exercise thereof there
shall have occurred a Termination Event. The Call Option Holder may exercise
such Call Options only in whole together with the Call Options underlying the
other Normal Units, by delivering to the Unit Agent a notice of exercise and
delivering to the Collateral Agent the Aggregate Call Option Exercise
Consideration, whereupon the QUIPS or Junior Subordinated Debentures underlying
the Normal Units will be released from the Pledge and the Treasury Securities
constituting all or part of the Aggregate Call Option Exercise Consideration
delivered to the Collateral Agent will be substituted as the Pledged Securities
underlying the Normal Units.
The Company shall pay, on each January 27, April 27, July 27 and October
27, commencing October 27, 1998 (each, a "Quarterly Payment Date"), in respect
of each Purchase Contract evidenced hereby, a fee (the "Contract Fee") accruing
on the Stated Amount of such Unit from and including the date of first issuance
of any Units at a rate per annum equal to 0.14% (the "Contract Fee Rate")
(computed on the basis of a 360-day year of twelve 30-day months and subject to
deferral as described in the Master Unit Agreement), plus any additional fees
accrued thereon pursuant to Section 503 of the Master Unit Agreement. The
Company's obligations with respect to Contract Fees shall be, to the extent
provided in the Master Unit Agreement, subordinate and subject in right of
payment to all Senior Indebtedness.
Payments due to the Holder in respect of the Normal Units evidenced hereby
will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The
Unit Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Except as provided in the Master Unit Agreement in connection with a
Stripped Unit Creation, for so long as the Purchase Contract underlying a Normal
Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Normal Unit may be transferred and exchanged only as an integrated Normal
Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and Call Options evidenced
hereby and by the Pledge Agreement, and the transferor shall be released from
such obligations. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof, irrevocably
authorizes the Unit Agent to enter into and perform the related Purchase
Contracts and Call Options evidenced hereby on his behalf as his attorney-in--
fact, agrees to be bound by the terms and provisions thereof, covenants and
agrees to perform his obligations under such Purchase Contracts and Call
Options, consents to the provisions of the Principal Agreements, irrevocably
authorizes the Unit Agent to enter into and perform the Call Option Agreement
and the Pledge Agreement on his behalf as his attorney-in-fact, and consents to
and agrees to be bound by the Pledge of the Pledged Securities evidenced hereby
pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal Agreements
may be amended with the consent of the Holders of at least a majority of the
Outstanding Units or, if the amendment affects only the Holders of the Normal
Units or only the Holders of the Stripped Units, at least a majority of the
Outstanding Units comprising Normal Units or Stripped Units, as the case may be.
THE PURCHASE CONTRACTS AND CALL OPTIONS SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit Agent
may treat the Person in whose name this Unit Certificate is registered as the
owner of the Normal Units evidenced hereby for the purpose of receiving payments
of distributions or interest on the Pledged Securities, receiving the rights and
performing the obligations under the Purchase Contracts and for all other
purposes whatsoever, whether or not any payments in respect thereof be overdue
and notwithstanding any notice to the contrary, and neither the Company, the
Unit Agent nor any such agent shall be affected by notice to the contrary.
THE PURCHASE CONTRACTS SHALL NOT, PRIOR TO THE SETTLEMENT THEREOF, ENTITLE
THE HOLDER TO ANY OF THE RIGHTS OF A HOLDER OF SHARES OF COMMON STOCK.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by the
Unit Agent by manual signature, this Unit Certificate shall not be entitled to
any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
AMERUS LIFE HOLDINGS, INC.
By:-----------------------------------------------
Attest: -----------------------------
HOLDER SPECIFIED ABOVE
By: First Union National Bank,
as Attorney-in-Fact of such Holder
By:-----------------------------------
IN WITNESS WHEREOF, the Holder hereby agrees, for the benefit of the Call
Option Holder, to its obligations under any Call Options evidenced by this
instrument, and the Holder hereby acknowledges, for the benefit of the Call
Option Holder, that the Pledged Securities evidenced by this instrument are
subject to the Pledge under the Pledge Agreement.
HOLDER SPECIFIED ABOVE
By: First Union National Bank,
as Attorney-in-Fact of such Holder
By:-------------------------------------
Dated:
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within mentioned
Master Unit Agreement.
First Union National Bank,
as Unit Agent
By: ------------------------------<PAGE>
Settlement Instructions
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Normal Units evidenced by this Unit
Certificate be registered in the name of, and delivered, together with a check
in payment for any fractional share, to the undersigned at the address indicated
below unless a different name and address have been indicated below. If shares
are to be registered in the name of a Person other than the undersigned, the
undersigned will pay any transfer tax payable incident thereto.
Dated: ------------------------------ -------------------------------------
Signature*
If shares are to be registered
in the
name of and delivered to a
Person
other than the Holder, please
print
such Person's name and
address:
REGISTERED HOLDER
Please print name and address
of
Registered Holder:
-------------------------
Name
-------------------------
Address
-------------------------
Social Security or other
Taxpayer
Identification Number, if any
-------------------------
Name
-------------------------
Address
-------------------------
-------------------------
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and in
the name of, the registered Holder.
<PAGE>
Request to Create Stripped Units
The undersigned Holder directs that (a) the Pledged Securities underlying
the number of Normal Units indicated below (which number does not exceed the
number of Normal Units evidenced by this Unit Certificate) be released from the
Pledge and registered in the name of, and delivered to, the undersigned at the
address indicated below unless a different name and address have been indicated
below and (b) a corresponding number of Stripped Units be registered in the name
of, and delivered to, the undersigned at the address indicated below unless a
different name and address have been indicated below. If the released Pledged
Securities or the Stripped Units are to be registered in the name of a Person
other than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
The undersigned confirms that the requisite Treasury Securities, any
required cash and the instrument from the Call Option Holder have been delivered
to the Collateral Agent.
Dated: ------------------------------- -------------------------------------
Signature*
If released Pledged Securities are to be registered in the name of and delivered
to a Person other than the Holder, please print
such Person's name and address: REGISTERED HOLDER
Please print name and address of
Registered Holder:
-----------------------------
Name
-----------------------------
Address
-----------------------------
Social Security or other Taxpayer
Identification Number, if any
-----------------------------
Name
Address
---------------------------
---------------------------
If Stripped Units are to be registered in the name of and delivered to a
Person other than the Holder, please print such Person's name and address:
----------------------------
Name
----------------------------
Address
----------------------------
Social Security or other Taxpayer
Identification Number, if any
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Pledged Securities or Stripped Units are to be
delivered other than to, and in the name of, the registered Holder.
<PAGE>
EXHIBIT B
Form of Stripped Unit Certificate
AMERUS LIFE HOLDINGS, INC.
7.00% Adjustable Conversion-rate Equity Security Units
(Stated Amount $31.5625 per Unit)
CUSIP No. -------
No. -------- ------- Stripped Units
This Unit Certificate certifies that is the
registered Holder of the number of Stripped Units set forth above. Each
Stripped Unit represents the right to purchase Common Stock under a Purchase
Contract with AmerUs Life Holdings, Inc., an Iowa corporation (the "Company"),
together with ownership of the Treasury Securities pledged to secure the
obligations referred to in (a) below, subject to (a) the obligations owed to the
Company under such Purchase Contract and (b) the pledge arrangements securing
the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by a Master Unit
Agreement, dated as of July 27, 1998 (the "Master Unit Agreement"), between the
Company and First Union National Bank, as unit agent (herein called the "Unit
Agent"). All terms used herein which are not defined herein and which are
defined in the Master Unit Agreement have the meanings set forth therein. The
Pledge of the Pledged Securities evidenced hereby is governed by the Pledge
Agreement. Reference is hereby made to the Master Unit Agreement and the Pledge
Agreement, and any supplemental agreements thereto, for a description of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Unit Agent, the Company, the Collateral Agent and the Holders.
The summary contained herein is qualified in its entirety by the provisions of
the Principal Agreements, and the Principal Agreements shall govern the rights
of the parties to the extent that there is any conflict between such summary and
such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this Unit
Certificate to purchase, and the Company to sell, on July 27, 2001 (the "Stock
Purchase Date"), at a price equal to $31.5625 (the "Stated Amount"), a number of
shares of Class A Common Stock, no par value per share, having such terms as set
forth in the Company's certificate of incorporation, as amended from time to
time ("Common Stock"), of the Company equal to the Settlement Rate, unless on or
prior to the Stock Purchase Date there shall have occurred a Termination Event.
The "Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
in the Master Unit Agreement) is greater than or equal to $38.5063 (the
"Threshold Appreciation Price"), 0.8197 of a share of Common Stock per Purchase
Contract, (b) if the Applicable Market Value is less than the Threshold
Appreciation Price but is greater than the Stated Amount, a fractional share of
Common Stock per Purchase Contract equal to the Stated Amount divided by the
Applicable Market Value (rounded to the nearest 1/10,000th of a share or, if
there is no nearest 1/10,000th of a share, rounded downward to the nearest
1/10,000th of a share) and (c) if the Applicable Market Amount is less than or
equal to the Stated Amount, one share of Common Stock per Purchase Contract, in
each case subject to adjustment as provided in the Master Unit Agreement. No
fractional shares of Common Stock will be issued upon settlement of Purchase
Contracts, but instead of any fractional interest the Company shall make a cash
payment as provided in the Master Unit Agreement. The purchase price for the
shares of Common Stock to be purchased pursuant to each Purchase Contract
evidenced hereby, if not paid by 10:00 a.m., New York City time, on the Stock
Purchase Date, shall be paid by application of payments received by the Company
on the Stock Purchase Date from the Collateral Agent pursuant to the Pledge
Agreement in respect of the Pledged Securities pledged to secure such Holder's
obligations under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Stripped Units shall thereafter
represent the right to receive the Pledged Securities forming a part of such
Stripped Units in accordance with the provisions of the Master Unit Agreement
and the Pledge Agreement.
The Company shall pay, on each January 27, April 27, July 27 and October
27, commencing October 27, 1998 (each, a "Quarterly Payment Date"), in respect
of each Purchase Contract evidenced hereby, a fee (the "Contract Fee") accruing
on the Stated Amount of such Unit from and including the date of first issuance
of any Units at a rate per annum equal to 0.14% (the "Contract Fee Rate")
(computed on the basis of a 360-day year of twelve 30-day months and subject to
deferral as described in the Master Unit Agreement), plus any additional fees
accrued thereon pursuant to Section 503 of the Master Unit Agreement. The
Company's obligations with respect to Contract Fees shall be, to the extent
provided in the Master Unit Agreement, subordinated and subject in right of
payment to all Senior Indebtedness.
Payments due to the Holder in respect of the Stripped Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate (or a
Predecessor Unit Certificate) is registered at the close of business on the
Record Date next preceding the relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The
Unit Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. For so long as the Purchase Contract underlying a Stripped Unit
remains in effect, such Stripped Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Stripped
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Stripped Unit may be transferred and exchanged only as an integrated
Stripped Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts evidenced hereby and by the
Pledge Agreement, and the transferor shall be released from such obligations.
The Company covenants and agrees, and the Holder, by his acceptance hereof,
likewise covenants and agrees, to be bound by the provisions of this paragraph.
The Holder of this Unit Certificate, by his acceptance hereof, irrevocably
authorizes the Unit Agent to enter into and perform the related Purchase
Contracts evidenced hereby on his behalf as his attorney-in-fact, agrees to be
bound by the terms and provisions thereof, covenants and agrees to perform his
obligations under such Purchase Contracts, consents to the provisions of the
Principal Agreements, irrevocably authorizes the Unit Agent to enter into and
perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
evidenced hereby pursuant to the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal Agreements
may be amended with the consent of the Holders of at least a majority of the
Outstanding Units or, if the amendment affects only the Holders of the Normal
Units or only the Holders of the Stripped Units, at least a majority of the
Outstanding Units comprising Normal Units or Stripped Units, as the case may be.
THE PURCHASE CONTRACTS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit Agent
may treat the Person in whose name this Unit Certificate is registered as the
owner of the Stripped Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Unit Agent nor any such agent shall be affected by notice to the contrary.
THE PURCHASE CONTRACTS SHALL NOT, PRIOR TO THE SETTLEMENT THEREOF, ENTITLE
THE HOLDER TO ANY OF THE RIGHTS OF A HOLDER OF SHARES OF COMMON STOCK.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by the
Unit Agent by manual signature, this Unit Certificate shall not be entitled to
any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
<PAGE>
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
AMERUS LIFE HOLDINGS, INC.
By:--------------------------------------------------
Attest: ---------------------
HOLDER SPECIFIED ABOVE
By: First Union National Bank,
as Attorney-in-Fact of such Holder
By:----------------------------------------------
Dated:
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within mentioned
Master Unit Agreement.
First Union National Bank,
as Unit Agent
By: ---------------------------------
<PAGE>
Settlement Instructions
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Stripped Units evidenced by this
Unit Certificate be registered in the name of, and delivered, together with a
check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the under-
signed, the undersigned will pay any transfer tax payable incident thereto.
Dated: ------------------------- ------------------------------------------
Signature*
If shares are to be registered in the name of and delivered to a Person
other than the Holder, please print such Person's name and address:
REGISTERED HOLDER
Please print name and address of
Registered Holder:
---------------------------------
Name
---------------------------------
Address
---------------------------------
Social Security or other Taxpayer
Identification Number, if any
---------------------------------
Name
---------------------------------
Address
---------------------------------
---------------------------------
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and in
the name of, the registered Holder.
Exhibit 4.10
============================================================
GOLDMAN, SACHS & CO.,
as Call Option Holder
AND
FIRST UNION NATIONAL BANK,
as Unit Agent and as Attorney-In-Fact
--------------
CALL OPTION AGREEMENT
--------------
Dated as of July 27, 1998
============================================================
<PAGE>
CALL OPTION AGREEMENT
CALL OPTION AGREEMENT, dated as of July 27, 1998,
between Goldman, Sachs & Co., as Call Option Holder, and
First Union National Bank, as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Normal Units.
RECITALS
AmerUs Life Holdings, Inc. and the Unit Agent are
parties to the Master Unit Agreement, dated as the date
hereof (as the same may be supplemented or amended in
accordance with the terms thereof, the "Master Unit
Agreement"). The Master Unit Agreement contemplates that
the Company will issue QUIPS-SM-* and Junior Subordinated
Debentures, and that QUIPS or Junior Subordinated Debentures
will underlie Normal Units outstanding from time to time
thereunder.
It is intended that the Holders from time to time
of the Normal Units grant Call Options entitling the Call
Option Holder to acquire the QUIPS or Junior Subordinated
Debentures underlying the related Normal Units on the terms
and subject to the conditions set forth herein. Pursuant to
the terms of the Principal Agreements and the Unit
Certificates for the Normal Units, the Holders from time to
time of the Normal Units irrevocably authorize the Unit
Agent, as attorney-in-fact of such Holders, to enter into
such Call Options and execute and deliver this Agreement on
behalf of such Holders.
Accordingly, the Call Option Holder and the Unit
Agent, on its own behalf and as attorney-in-fact of the
Holders from time to time of the Normal Units, agree as
follows:
---------------------
* QUIPS is a servicemark of Goldman, Sachs & Co.
<PAGE>
ARTICLE ONE
Definitions
Section 1. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(a) capitalized terms used herein and not defined
are used herein as defined in the Master Unit
Agreement; and
(b) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Aggregate Call Option Exercise Consideration"
means consideration comprised of:
(a) Treasury Securities that through their
scheduled payments will generate by each
Quarterly Payment Date falling after the Call
Settlement Date and on or before the Stock
Purchase Date an amount of cash equal to the
aggregate distributions or interest payments
that are scheduled to be payable in respect
of the QUIPS or Junior Subordinated
Debentures underlying the Normal Units on
such Quarterly Payment Date (assuming for
this purpose, even if not true, that (i) no
distributions or interest payments will then
have been deferred and (ii) that the rate of
distribution on the QUIPS and the rate of
interest on the Junior Subordinated
Debentures remains at 6.86%);
(b) Treasury Securities that through their
scheduled payments will generate by the Stock
Purchase Date an amount of cash equal to the
aggregate Stated Amount of the Normal Units;
and
(c) if the Company is, at the Call Settlement
Date, deferring distributions on the QUIPS or
interest payments on the Junior Subordinated
Debentures, an amount in cash equal to (i)
the aggregate unpaid distributions on the
QUIPS or interest payments on the Junior
Subordinated Debentures underlying the Normal
Units accrued to the Call Settlement Date, if
the Call Settlement Date is a Quarterly
Payment Date, or (ii) the aggregate unpaid
distributions on the QUIPS or interest
payments on the Junior Subordinated
Debentures underlying the Normal Units
accrued to the Quarterly Payment Date
immediately preceding the Call Settlement
Date plus interest thereon at the Deferral
Rate for the period from and including such
Quarterly Payment Date to but excluding such
Call Settlement Date (computed on the basis
of a 360-day year of twelve 30-day months),
if the Call Settlement Date is not a
Quarterly Payment Date.
"Call Option Expiration Date" means April 27, 2001
(or, if such date is not a Business Day, the next
succeeding Business Day).
ARTICLE TWO
Call Option
Section 2.1 Grant. The Unit Agent, on behalf of
and as attorney-in-fact for the Holders from time to time of
the Normal Units, hereby grants the Call Options to the Call
Option Holder on the terms and subject to the conditions set
forth herein.
Section 2.2 Consideration. As consideration for
such Call Options, concurrently with the execution hereof,
the Call Option Holder is paying to the underwriters under
the Underwriting Agreement (who are acting in this regard on
behalf of the initial investors in the Normal Units) an
amount equal to $0.1136 per Call Option.
Section 2.3 Expiration or Termination of Call
Options. The Call Options shall be irrevocable, but the
Call Options and the rights of the Call Option Holder and
the obligations of the Holders of Normal Units thereunder
shall (a) expire on the Call Option Expiration Date if the
Call Settlement Date has not occurred on or prior to such
date and (b) automatically terminate upon the occurrence of
a Termination Event.
ARTICLE THREE
Exercise of Call Options
Section 3.1 Exercise Mechanics.
(a) The Call Option Holder may exercise all (but
not less than all) the Call Options by (i) delivering to the
Unit Agent and the Collateral Agent, on or prior to the Call
Option Expiration Date, a notice, substantially in the form
set forth in Annex A attached hereto, stating that the Call
Option Holder is exercising its Call Options and specifying
the Call Settlement Date therefor (which must be a Business
Day falling on or before the Call Option Expiration Date)
and (ii) delivering to the Collateral Agent, by Noon, New
York City time, on the Call Settlement Date, the Aggregate
Call Option Exercise Consideration.
(b) Pursuant to the Pledge Agreement, upon
receipt by the Collateral Agent of the Aggregate Call Option
Exercise Consideration in the manner contemplated hereby and
by the Pledge Agreement, the Collateral Agent shall release
the QUIPS or Junior Subordinated Debentures underlying the
Normal Units, free and clear of any lien, pledge or security
interest created by the Pledge Agreement, and transfer such
released QUIPS or Junior Subordinated Debentures to the Call
Option Holder or its designee as specified in the notice
referred to in Section 3.1(a) above.
(c) The Unit Agent shall, not later than three
Business Days following the Call Settlement Date, mail
notice of the exercise of the Call Options to the Holders of
Normal Units in the manner prescribed by the Master Unit
Agreement.
ARTICLE FOUR
Miscellaneous
4.1 Amendments. This Agreement may be amended in the
manner set forth in Section 801 of the Master Unit Agreement
with respect to supplemental agreements.
4.2 Governing Law. THIS AGREEMENT 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. The Call Option Holder, the Unit Agent and the
Holders from time to time of the Normal Units, acting
through the Unit Agent as their attorney-in-fact, hereby
submit to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of
any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby.
The Call Option Holder, the Unit Agent and the Holders from
time to time of the Normal Units, acting through the Unit
Agent as their attorney-in-fact, irrevocably waive, to the
fullest extent permitted by applicable law, any objection
which they may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
4.3 Notices. All notices, requests, consents and
other communications provided for herein (including, without
limitation, any modifications of, or waivers or consents
under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to
the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof or,
as to any party, at such other address as shall be
designated by such party in a notice to the other party.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
4.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the respective
successors and assigns of the Call Option Holder and the
Unit Agent, and the Holders from time to time of the Normal
Units, by their acceptance of the same, shall be deemed to
have agreed to be bound by the provisions hereof and to have
ratified the agreements of, and the grant of the Call
Options hereunder by, the Unit Agent.
4.5 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together
shall constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any
such counterpart.
4.6 Severability. If any provision hereof is invalid
or unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (a) the other provisions hereof
shall remain in full force and effect in such jurisdiction
and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be
possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other
jurisdiction.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first
above written.
GOLDMAN, SACHS & CO.,
as Call Option Holder
/s/ Goldman, Sachs & Co.
----------------------------
(Goldman, Sachs & Co.)
Address for Notices:
85 Broad Street
New York, New York 10004
Attention: Registration Department
FIRST UNION NATIONAL BANK,
as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Normal Units
By: /s/ Shawn Bednasek
-----------------------------
Name: Shawn Bednasek
Title: Vice President
Address for Notices:
230 South Tyson St., 9th Floor
Charlotte, North Carolina 28288
Attention: Corporate Trust and
Administration
<PAGE>
ANNEX A
EXERCISE NOTICE
Reference is made to the Call Option Agreement,
dated as of July 27, 1998 (the "Call Option Agreement"),
between Goldman, Sachs & Co., as Call Option Holder, and
First Union National Bank, as Unit Agent and attorney-in-fact of the
Holders from time to time of the Normal Units.
Capitalized terms used herein but not defined are used
herein as defined in the Call Option Agreement.
The undersigned hereby exercises all of the Call
Options underlying the Normal Units and specifies ------------- as the Call
Settlement Date. Certificates representing
the QUIPS or Junior Subordinated Debentures underlying the
Normal Units should be registered in the name of ------------------- and
delivered to [insert address].
GOLDMAN, SACHS & CO.,
As Call Option Holder
----------------------------
(Goldman, Sachs & Co.)
Date: ---------------------------------------------
Exhibit 4.11
==============================================================================
AMERUS LIFE HOLDINGS, INC.
GOLDMAN, SACHS & CO.,
as Call Option Holder
THE CHASE MANHATTAN BANK,
as Collateral Agent and Securities Intermediary
AND
FIRST UNION NATIONAL BANK,
as Unit Agent and as Attorney-In-Fact
---------------
PLEDGE AGREEMENT
---------------
Dated as of July 27, 1998
========================================================================
<PAGE>
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of July 27, 1998, among AmerUs Life Holdings,
Inc., an Iowa corporation (the "Company", as such term is more fully defined in
the Master Unit Agreement referred to below), Goldman, Sachs & Co., as Call
Option Holder, The Chase Manhattan Bank, as Collateral Agent and in its capacity
as a "securities intermediary" as defined in Section 8-102(a)(14) of the Code
(as defined herein) (in such capacity, the "Securities Intermediary"), and First
Union National Bank, as Unit Agent and as attorney-in-fact of the Holders from
time to time of the Units.
RECITALS
The Company and the Unit Agent are parties to the Master Unit Agreement,
dated as of the date hereof (as the same may be supplemented or amended from
time to time in accordance with the terms thereof, the "Master Unit Agreement").
The Master Unit Agreement contemplates that the QUIPS-SM-*, Junior Subordinated
Debentures or Treasury Securities that from time to time underlie the Units be
pledged to the Collateral Agent to secure the obligations of the Holders of
Units under the Purchase Contracts and Call Options that underlie such Units.
Pursuant to the terms of the Principal Agreements and the Unit
Certificates, the Holders from time to time of the Units irrevocably authorize
the Unit Agent, as attorney-in-fact of such Holders, to execute and deliver
this Agreement on behalf of such Holders and to grant the pledge provided hereby
of the Pledged Securities underlying such Units as provided herein and subject
to the terms hereof.
Accordingly, the Company, the Call Option Holder, the Collateral Agent and
the Unit Agent, in its capacity as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Units, agree as follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement;
(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
- ---------------------
* QUIPS is a servicemark of Goldman, Sachs & Co.<PAGE>
(c) all other
terms contained herein shall, unless the context
indicates otherwise, have the meanings assigned to such terms by the Code
(as defined herein) to the extent the same are defined therein.
"Aggregate Call Option Exercise Consideration" has the meaning specified
in the Call Option Agreement.
"Agreement" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Part 357 of Title 31 of the Code
of Federal Regulations (31 CFR Section 357 et seq.) and any other regulations of
the United States Treasury Department from time to time applicable to the
transfer or pledge of book-entry Treasury Securities.
"Code" has the meaning specified in Section 6(a) hereof.
"Collateral" has the meaning specified in Section 2 hereof.
"Collateral Account" means the trust account (number C27866) maintained at
The Chase Manhattan Bank in the name of "The Chase Manhattan Bank, as Collateral
Agent".
"Date of Deemed Receipt" means, with respect to any payment received by
the Collateral Agent, the date of receipt thereof; PROVIDED, HOWEVER, that if
such payment is received on a date which is not a Quarterly Payment Date and is
not either a payment in respect of defaulted distributions or interest on QUIPS
or Junior Subordinated Debentures or a payment comprising a part of the
Aggregate Call Option Exercise Consideration, "Date of Deemed Receipt" means,
with respect to such payment, the Quarterly Payment Date next succeeding such
date of receipt.
"Pledged Securities" means all QUIPS constituting a part of the Units and
any Treasury Securities delivered in exchange for QUIPS or Junior Subordinated
Debentures in accordance with Section 5(b) and (c) hereof (or securities
entitlements thereto) in each case that have been delivered to the Collateral
Agent and not released by the Collateral Agent to the Unit Agent under the
provisions of this Agreeement, and any Junior Subordinated Debentures that have
been delivered to the Collateral Agent pursuant to Section 5(e) of this
Agreement and not released by the Collateral Agent to the Unit Agent under the
provisions of this Agreement.
"Proceeds" means all interest, dividends, cash, instruments, securities,
financial assets (as defined in Article 8 of the Code) and other property and
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Securities.
Section 2. The Pledge. The Holders from time to time of the Units acting
through the Unit Agent, as their attorney-in-fact, hereby pledge to the
Collateral Agent (for the benefit of the Company and the Call Option Holder as
their interests may appear), and grant to the Collateral Agent, for the benefit
of the Company and the Call Option Holder (as their interests may appear) a
security interest in all of the right, title and interest of such Holders in and
to (i) the Pledged Securities, (ii) the Collateral Account and all securities,
financial assets and other property credited thereto and all security
entitlements related thereto and (iii) all proceeds of each of the foregoing
(collectively, the "Collateral"), as collateral security to ensure the
performance when due by such Holders of their respective obligations under the
Purchase Contracts and Call Options underlying such Units. Concurrently with
the execution of this Agreement, the initial Holders of the first 4,150,000
Normal Units issued under the Master Unit Agreement, the Unit Agent and the
Collateral Agent are causing 4,150,000 QUIPS to be delivered to, and registered
in the name of, the Collateral Agent, and such QUIPS will thereupon constitute
Pledged Securities forming a part of such Normal Units. As used in this Section
2, the term "delivery" shall have the meaning ascribed to it in the Uniform
Commercial Code of the State of New York. In the event that any or all of the
additional 585,400 Normal Units that may be issued as a result of an exercise of
the overallotment option of the underwriters under the Underwriting Agreement
are issued pursuant to the Master Unit Agreement at or after the execution of
this Agreement, the initial Holders of such Normal Units, the Unit Agent and the
Collateral Agent shall cause a number of QUIPS equal to the number of such
Normal Units to be delivered to, and registered in the name of, the Collateral
Agent, and such QUIPS will thereupon constitute Pledged Securities forming a
part of such Normal Units. In addition, the execution hereof by the Unit Agent
and the Collateral Agent shall constitute an acknowledgment by the Collateral
Agent and Securities Intermediary of the Pledge and of the Securities
Intermediary's holding of such QUIPS or other Pledged Securities substituted
therefor in accordance with the provisions hereof subject to the Pledge and of
the Securities Intermediary's crediting such QUIPS or other Pledged Securities
to the Collateral Account for purposes of perfecting the Pledge under applicable
law, including, to the extent applicable, the Uniform Commercial Code as adopted
and in effect in any applicable jurisdiction and the Applicable Treasury
Regulations. Subject to the Pledge, the Holders from time to time of the Units
shall have full beneficial ownership of the Pledged Securities underlying such
Units, and shall be entitled (directly or through the Collateral Agent) to all
of the rights provided by such Pledged Securities, and the Company and the Call
Option Holder shall have no rights with respect to such Pledged Securities other
than their respective security interests therein.
Section 3. Payments in Respect of the Pledged Securities. Any payment
received by the Collateral Agent in respect of the Pledged Securities underlying
any Normal Units or Stripped Units shall be paid by the Collateral Agent, by
wire transfer in same day funds no later than 1:00 p.m., New York City time, on
the Date of Deemed Receipt (or, if the Date of Deemed Receipt is not a Business
Day or if such payment is received by the Collateral Agent after noon, New York
City time, on the Date of Deemed Receipt, then such payment shall be made by the
Collateral Agent no later than 10:00 a.m., New York City time, on the next
succeeding Business Day), as follows:
(a) in the case of payments not scheduled to fall on and that are
not in respect of amounts due on the Stock Purchase Date, to the Unit
Agent, to the account designated by it for payments in respect of Normal
Units or the account designated by it for payments in respect of Stripped
Units, as the case may be; and
(b) in the case of payments scheduled to fall on or that are in
respect of amounts due on the Stock Purchase Date, (i) with respect to
payments received in respect of Units which are Paid Units (as specified
in the notice from the Unit Agent referred to in Section 4), to the Unit
Agent, to the account designated by it for payments in respect of Paid
Units which are Normal Units or the account designated by it for payments
in respect of Paid Units which are Stripped Units, as the case may be; and
(ii) with respect to payments received in respect of Units which are
Unpaid Units (as specified in the notice from the Unit Agent referred to
in Section 4), (x) first, to the Company, to the account designated by it
for such purpose, in an amount equal to the aggregate amount payable to
the Company in respect of such Unpaid Units, and (y) second, to the extent
of any amount remaining after the payment (if any) referred to in (x)
above, to the Unit Agent, to the account designated by it for payments in
respect of Unpaid Units which are Normal Units; PROVIDED, HOWEVER, that if
the Company disputes the notice from the Unit Agent referred to in
Section 4 and notifies the Collateral Agent in writing, prior to noon, New
York City time, on the Stock Purchase Date, that the number of Paid Units
or the number of Unpaid Units (or both) is different from that indicated
in such notice, the foregoing payments with respect to any Paid Units or
Unpaid Units subject to dispute shall not be paid until such dispute is
resolved.
All payments received by the Unit Agent as provided herein shall be
applied by the Unit Agent pursuant to the provisions of the Master Unit
Agreement.
Section 4. Notice with Respect to Numbers of Paid Units and Unpaid Units;
Exercise of Junior Subordinated Debenture Put Options with Respect to Unpaid
Units. By 11:00 a.m., New York City time, on the Stock Purchase Date, the Unit
Agent shall, as provided in the Master Unit Agreement, notify the Company and
the Collateral Agent as to the number of Normal Units and the number of Stripped
Units, respectively, which are Paid Units and the number of Normal Units and the
number of Stripped Units, respectively, which are Unpaid Units. Promptly after
receiving such notification, (a) if QUIPS underlie the Unpaid Units of any
Holder, the Collateral Agent, on behalf of such Holder, shall exercise such
Holder's right under the Declaration to require the Trust to distribute Junior
Subordinated Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of such QUIPS, in exchange for such QUIPS, and,
upon receiving such Junior Subordinated Debentures, shall thereupon, as Put
Agent, exercise the Junior Subordinated Debenture Put Option with respect
thereto and (b) if Junior Subordinated Debentures underlie such Unpaid Units,
the Collateral Agent, on behalf of such Holder, shall, as Put Agent, exercise
the Junior Subordinated Debenture Put Option with respect thereto. The payment
received by the Collateral Agent from the exercise of any Junior Subordinated
Debenture Put Option shall then be applied by the Collateral Agent in accordance
with Section 3(b).
Section 5. Release and Substitution of Pledged Securities. (a) Upon
notice to the Collateral Agent by the Company or the Unit Agent that there has
occurred a Termination Event, the Collateral Agent shall release all Pledged
Securities from the Pledge and shall transfer, without recourse, such released
Pledged Securities, free and clear of any lien, pledge or security interest
created hereby, to the Unit Agent for delivery by the Unit Agent pursuant to the
provisions of the Master Unit Agreement.
(b) Upon notice to the Collateral Agent by the Call Option Holder that
the Call Option Holder is exercising the Call Options in accordance with the
terms of the Call Option Agreement with respect to the QUIPS or Junior
Subordinated Debentures underlying the Normal Units, PROVIDED that the
Collateral Agent receives the requisite Aggregate Call Option Exercise
Consideration on the Call Settlement Date specified in such notice, the
Collateral Agent shall release such QUIPS or Junior Subordinated Debentures from
the Pledge and transfer, without recourse, such released QUIPS or Junior
Subordinated Debentures, free and clear of any lien, pledge or security interest
created hereby, to the Call Option Holder or its designee as specified in such
notice, whereupon (i) the Treasury Securities constituting all or a part of the
Aggregate Call Option Exercise Consideration so received by the Collateral Agent
shall be subject to the Pledge with respect to the Normal Units and (ii) the
Pledge shall cease to constitute a security interest for the benefit of the Call
Option Holder.
(c) In connection with a Stripped Unit Creation, upon request by the Unit
Agent to the Collateral Agent to release the then Pledged Securities underlying
the number of Normal Units indicated in such request, PROVIDED that the
Collateral Agent has received (i) the Treasury Securities and cash required by
Section 309(a)(i) of the Master Unit Agreement for a Stripped Unit Creation
relating to such Normal Units and (ii) if the Call Options underlying such
Normal Units remain exercisable on the date of receipt of such instruction, an
instrument from the Call Option Holder releasing its security interest in the
Pledged Securities underlying such Normal Units and agreeing that such Call
Options no longer underlie such Normal Units (or the Stripped Units they
become), the Collateral Agent shall release such Pledged Securities from the
Pledge and transfer, without recourse, such released Pledged Securities, free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery by the Unit Agent pursuant to the provisions of the Master
Unit Agreement, whereupon the Treasury Securities so received by the Collateral
Agent in connection with such Stripped Unit Creation shall be subject to the
Pledge and constitute the Pledged Securities underlying the Stripped Units so
created.
(d) In connection with the delivery to the Collateral Agent of Treasury
Securities pursuant to Section 5(b) or (c), such delivery shall be by Federal
Reserve Bank-Wire to the account of the Securities Intermediary designated by it
for such purpose, and the Securities Intermediary and the Call Option Holder or
transferring Holder of Normal Units, as the case may be, shall take appropriate
action (i) so that the applicable Federal Reserve Bank through which such
Treasury Securities have been purchased will reflect such transfer and the
Securities Intermediary shall credit a security entitlement with respect to such
Treasury Securities in the Collateral Account in accordance with Applicable
Treasury Regulations and (ii) as may be required to perfect the Pledge under
Applicable Treasury Regulations and applicable law.
(e) In the event the Trust is dissolved while any QUIPS are Pledged
Securities underlying Normal Units, the Junior Subordinated Debentures issued
upon dissolution thereof shall be delivered to the Collateral Agent in exchange
for such QUIPS, whereupon such QUIPS shall cease to constitute Pledged
Securities and the Junior Subordinated Debentures so received by the Collateral
Agent shall be subject to the Pledge and constitute the Pledged Securities
underlying such Normal Units.
(f) On the Stock Purchase Date, the Collateral Agent shall release the
QUIPS or Junior Subordinated Debentures underlying Units which are Paid Units
(as specified in the notice from the Unit Agent referred to in Section 4) from
the Pledge and transfer, without recourse, such released QUIPS or Junior
Subordinated Debentures, free and clear of any lien, pledge or security interest
created hereby, to the Unit Agent for delivery pursuant to the provisions of the
Master Unit Agreement; PROVIDED, HOWEVER, that if the Company disputes the
notice from the Unit Agent referred to in Section 4 and notifies the Collateral
Agent, prior to noon, New York City time, on the Stock Purchase Date, that the
number of Paid Units is different from that indicated in such notice, the
foregoing release with respect to any Paid Units subject to dispute shall not be
made until such dispute is resolved.
Section 6. Rights and Remedies. (a) The Collateral Agent shall have all
of the rights and remedies with respect to the Collateral of a secured party
under the Uniform Commercial Code as in effect in the State of New York (the
"Code") (whether or not said Code is in effect in the jurisdiction where the
rights and remedies are asserted) and, with respect to Pledged Securities which
are Treasury Securities, the Applicable Treasury Regulations, and such
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder may
be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments due to the Company pursuant to the Purchase Contracts
underlying any Units, the Collateral Agent shall have and shall exercise, upon
the written direction of the Company and, if the Call Options are outstanding,
the Call Option Holder, with reference to the Pledged Securities underlying such
Units and the obligations of the Holders of such Units, any and all of the
rights and remedies available to a secured party under the Code and the
Applicable Treasury Regulations after default by a debtor, and as otherwise
granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or distributions
or interest on the Pledged Securities, in each case subject to the provisions
hereof.
(d) The Unit Agent, the Call Option Holder and each Holder of Units
agree that, from time to time, upon the written request of the Collateral Agent,
the Unit Agent, the Call Option Holder or such Holder of Units shall execute and
deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order to maintain the Pledge, and the
perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder.
Section 7. The Collateral Agent. The Collateral Agent, the Company and
the Call Option Holder hereby agree among themselves as follows (it being
understood and agreed that, except as provided in Section 7.08, neither the Unit
Agent nor any Holder of Units shall have any rights or duties under this
Section 7):
7.01 Appointment, Powers and Immunities. The Collateral Agent shall act
hereunder as agent for the Company and the Call Option Holder, with such powers
as are specifically vested in the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
The Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof; (b) shall not be responsible to the
Company or the Call Option Holder for any recitals contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by it under, this Agreement, the Units, the Master Unit Agreement, or
the Call Option Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Units, the Master Unit Agreement or the Call
Option Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company, the Call Option Holder, or any other
Person (except the Collateral Agent) to perform any of its obligations hereunder
or thereunder; (c) shall not be required to initiate or conduct any litigation
or collection proceedings hereunder (except pursuant to directions furnished
under Section 7.02 hereof); (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith or therewith,
except for its own negligence or wilful misconduct; and (e) shall not be
required to advise any party as to selling or retaining, or taking or refraining
from taking any action with respect to, any Units or any property deposited
hereunder. Subject to the foregoing, during the term of this Agreement the
Collateral Agent shall take all reasonable action in connection with the
safekeeping and preservation of the Pledged Securities hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Securities.
7.02 Instructions of the Company. The Company (or, with respect to
matters relating to the Call Options, the Call Option Holder) shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Collateral Agent, or of
exercising any power conferred on the Collateral Agent, or to direct the taking
or refraining from taking of any action authorized by this Agreement; provided,
however, that (a) the Company shall not give any direction that in any way
adversely affects the rights of the Call Option Holder hereunder or under the
Call Options and the Call Option Holder shall not give any direction that in any
way adversely affects the rights of the Company hereunder or under the Purchase
Contracts, (b) such direction shall not conflict with the provisions of any law
or of this Agreement and (c) the Collateral Agent shall be adequately
indemnified as provided herein. Nothing in this Section 7.02 shall impair the
right of the Collateral Agent in its discretion to take any action or omit to
take any action which it deems proper and which is not inconsistent with such
direction.
7.03 Reliance by Collateral Agent. The Collateral Agent shall be
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company or the Call Option Holder, as the case may be, in
accordance with this Agreement.
7.04 Rights in Other Capacities. The Collateral Agent and its affiliates
may (without having to account therefor to the Company or the Call Option
Holder) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the Company, the
Call Option Holder, the Unit Agent and any Holder of Units as if it were not
acting as the Collateral Agent, and the Collateral Agent and its affiliates may
accept fees and other consideration from the Company, the Call Option Holder,
the Unit Agent and any Holder of Units without having to account for the same to
the Company or the Call Option Holder, PROVIDED that the Collateral Agent
covenants and agrees with the Company and the Call Option Holder that the
Collateral Agent shall not accept, receive or permit there to be created in its
favor any security interest, lien or other encumbrance of any kind in or upon
the Pledged Securities, except as contemplated by the terms hereof.
7.05 Non-Reliance on Collateral Agent. The Collateral Agent shall not be
required to keep itself informed as to the performance or observance by the Unit
Agent or any Holder of Units of this Agreement, the Master Unit Agreement, the
Call Option Agreement, the Units or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Unit Agent or
any Holder of Units. The Collateral Agent shall not have any duty or
responsibility to provide the Company or the Call Option Holder with any credit
or other information concerning the affairs, financial condition or business of
the Unit Agent or any Holder of Units that may come into the possession of the
Collateral Agent or any of its affiliates.
7.06 Compensation and Indemnity. The Company agrees: (a) to pay the
Collateral Agent from time to time reasonable compensation for all services
rendered by it hereunder and (b) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense including taxes (other
than taxes based upon, measured by or determined by the income of the Collateral
Agent) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of its powers and duties
under this Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
such powers and duties. The provisions of this Section 7.06 shall survive the
resignation or removal of the Collateral Agent and the termination of this
Agreement.
7.07 Failure to Act. In the event of any ambiguity in the provisions of
this Agreement or any dispute between or conflicting claims by or among the
undersigned and/or any other Person with respect to any funds or property
deposited hereunder, the Collateral Agent shall be entitled, at its sole option,
to refuse to comply with any and all claims, demands or instructions with
respect to such property or funds so long as such dispute or conflict shall
continue, and the Collateral Agent shall not be or become liable in any way to
any of the undersigned for its failure or refusal to comply with such
conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (a) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing satisfactory to the Collateral Agent or (b) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
7.08 Resignation of Collateral Agent. Subject to the appointment and
acceptance of a successor Collateral Agent as provided below, (a) the Collateral
Agent may resign at any time by giving notice thereof to the Company, the Unit
Agent and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder, (b) the Collateral Agent may be removed at any
time by the Company (PROVIDED, that, if the Call Options are exercisable or have
been exercised but not settled, the Call Option Holder shall have consented to
such removal), and (c) if the Collateral Agent fails to perform any of its
material obligations hereunder in any material respect for a period of not less
than 20 days after receiving notice of such failure by the Unit Agent and such
failure shall be continuing, the Collateral Agent may be removed by the Unit
Agent. The Unit Agent shall promptly notify the Company and, if the Call
Options are exercisable or have been exercised but not settled, the Call Option
Holder of any removal of the Collateral Agent pursuant to clause (c) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder shall have the right to appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so appointed
and shall have accepted such appointment within 30 days after the retiring
Collateral Agent's giving of notice of resignation or such removal, then the
retiring Collateral Agent may petition any court of competent jurisdiction for
the appointment of a successor Collateral Agent. The Collateral Agent shall be
a bank which has an office in New York, New York with a combined capital and
surplus of at least $50,000,000. Upon the acceptance of any appointment as
Collateral Agent hereunder by a successor Collateral Agent, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Agent, and the
retiring Collateral Agent shall take all appropriate action to transfer any
money and property held by it hereunder (including the Pledged Securities) to
such successor Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral Agent
hereunder. After any retiring Collateral Agent's resignation hereunder as
Collateral Agent, the provisions of this Section 7 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Collateral Agent.
7.09 Right to Appoint Agent or Advisor. The Collateral Agent shall have
the right to appoint agents or advisors in connection with any of its duties
hereunder, and the Collateral Agent shall not be liable for any action taken or
omitted by such agents or advisors selected in good faith.
7.10 Survival. The provisions of this Section 7 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent.
Section 8 Miscellaneous.
8.01 Amendments. This Agreement may be amended in the manner set forth in
Section 801 of the Master Unit Agreement for supplemental agreements. In
executing any amendment permitted by this Section, the Collateral Agent shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this Agreement and is for a purpose
set forth in Section 801 of the Master Unit Agreement, and that all conditions
precedent herein and in the Principal Agreements related to such amendment have
been satisfied.
8.02 No Waiver. No failure on the part of the Collateral Agent or any of
its agents to exercise, and no course of dealing with respect to, and no delay
in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Collateral Agent or any
of its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
8.03 Governing Law. THIS AGREEMENT 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. The Company, the Call Option Holder, the Collateral
Agent and the Holders from time to time of the Units, acting through the Unit
Agent as their attorney-in-fact, hereby submit to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
any New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company, the Call Option Holder, the Collateral Agent
and the Holders from time to time of the Units, acting through the Unit Agent as
their attorney-in-fact, irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
8.04 Legal Holidays. In any case where any Quarterly Payment Date or the
Stock Purchase Date shall not be a Business Day, then (notwithstanding any other
provision of this Agreement or of the Units) the actions required by this
Agreement to occur on such date shall not occur on such date, but instead shall
occur on the next succeeding Business Day with the same force and effect as if
they had occurred on such Quarterly Payment Date or Stock Purchase Date, as the
case may be; except that if such next succeeding Business Day is in the next
calendar year, such actions shall occur on the immediately preceding Business
Day with the same force and effect as if made on such Quarterly Payment Date or
Stock Purchase Date.
8.05 Notices. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the intended recipient
at the "Address for Notices" specified below its name on the signature pages
hereof or, as to any party, at such other address as shall be designated by such
party in a notice to the other parties. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
8.06 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Call Option Holder, the Collateral Agent and the Unit Agent, and the Holders
from time to time of the Units, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Unit Agent, as
their attorney-in-fact.
8.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.08 Severability. If any provision hereof is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (b) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
8.09 Expenses, etc. The Company agrees to reimburse the Collateral Agent
for: (a) all reasonable out-of-pocket costs and expenses of the Collateral Agent
(including, without limitation, the reasonable fees and expenses of counsel to
the Collateral Agent), in connection with (i) the negotiation, preparation,
execution and delivery or performance of this Agreement and (ii) any
modification, supplement or waiver of any of the terms of this Agreement;
(b) all reasonable costs and expenses of the Collateral Agent (including,
without limitation, reasonable fees and expenses of counsel) in connection with
(i) any enforcement or proceedings resulting or incurred in connection with
causing any Holder of Units to satisfy its obligations under the Purchase
Contracts or Call Options forming a part of the Units and (ii) the enforcement
of this Section 8.09; and (c) all transfer, stamp, documentary or other similar
taxes, assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated hereby.
8.10 Security Interest Absolute. All rights of the Collateral Agent and
security interests hereunder, and all obligations of the Holders from time to
time of the Units hereunder, shall be absolute and unconditional irrespective
of:
(a) any lack of validity or enforceability of any provision of the
Units or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of Units under the related Purchase Contracts or
Call Options or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Master Unit Agree-
ment or any Units or any other agreement or instrument relating thereto;
or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AMERUS LIFE HOLDINGS, INC.
By: /s/ Roger K. Brooks
----------------------------
Name: Roger K. Brooks
Title: Chairman, President and
Chief Executive Officer
Address for Notices:
699 Walnut Street
Des Moines, Iowa 50309-3948
Attention: General Counsel
Telecopy: 515-362-3648
GOLDMAN, SACHS & CO.,
as Call Option Holder
/s/ Goldman, Sachs & Co.
------------------------------
(Goldman, Sachs & Co.)
Address for Notices:
85 Broad Street
New York, New York 10004
Attention: Registration Department
Telecopy: 212-357-1557
THE CHASE MANHATTAN BANK,
as Collateral Agent and Securities Intermediary
By: /s/ Richard Lorenzen
-----------------------------
Name: Richard Lorenzen
Title: Senior Trust Officer
Address for Notices:
450 West 33rd Street, 15th Floor
New York, New York 10001
Telecopy: (212) 946-8159
Attention: Global Trust Services
FIRST UNION NATIONAL BANK,
as Unit Agent and as attorney-in-fact of the Holders from time to time of the
Units
By: /s/ Shawn Bednasek
-------------------------------
Name: Shawn Bednasek
Title: Vice President
Address for Notices:
230 Tyron Street, 9th Floor
Charlotte, North Carolina 28288
Attention: Corporate Trust Department
Telecopy: 704-383-7316
Exhibit 4.12
REGISTERED REGISTERED
AMERUS LIFE HOLDINGS, INC.
6.86% JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE DUE JULY 27, 2003
CUSIP 030732AB7
No. A-1 US $135,035,453.00
AMERUS LIFE HOLDINGS, INC., a corporation duly organized and existing
under the laws of Iowa (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to First Union National Bank, as Property
Trustee for AmerUs Capital II, a Delaware statutory business trust (the "Trust")
or registered assigns, (i) the principal sum of One Hundred Thirty-Five Million
Thirty-Five Thousand Four Hundred Fifty-Three Dollars ($135,035,453.00) on July
27, 2003, (the "Maturity Date") unless previously repurchased as provided
herein, (ii) interest (a) on said principal sum from July 27, 1998, or from the
most recent interest payment date (each such date, an "Interest Payment Date")
to which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on January 27, April 27, July 27 and
October 27, of each year, commencing on October 27, 1998, initially at the rate
of 6.86% per annum (the "Initial Interest Rate") until the Market Rate Increase
Date (as hereinafter defined), and if the Rate Increase Agent (as hereinafter
defined) establishes a Market Increase Rate (as hereinafter defined) at such
Market Increase Rate (whichever of the Initial Interest Rate or the Market
Increase Rate as may be in effect at any applicable time being referred to
herein as the "Interest Rate") thereafter until the principal hereof shall have
become due and payable, (b) at the Interest Rate on any overdue principal and
premium, if any, and (c) at the Interest Rate, compounded quarterly on any
overdue installment of interest and (iii) the Put Price (as hereinafter defined)
with respect hereto; in each case, without duplication and to the extent that
payment of such interest is enforceable under applicable law. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year consisting of twelve 30-day months. In the event that any date
on which principal of (or premium, if any), or interest on or the Put Price with
respect to this 6.86% Junior Subordinated Deferrable Interest Debentures due
July 27, 2003 (the "Debenture") is not a Business Day, then payment payable on
such date will be made on the next succeeding day that is a Business Day (and to
the extent such payment is made on the next succeeding Business Day, 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 such payment was originally payable.
The interest 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 Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
payment, which shall be one Business Day prior to the relevant Interest Payment
Date unless this Debenture is distributed upon liquidation of the Trust and is
issued in certificated form, in which case the record date for such interest
installment shall be the first day of the month in which the relevant Interest
Payment Date falls. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date by virtue of their having been
such Holder and may either be paid to the Person in whose name this Debenture
(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 (as hereinafter defined), notice whereof is to be given to
Holders of Debentures not less than 10 calendar 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 Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. The principal of (and premium, if any) and
the interest on and the Put Price with respect to this Debenture shall be
payable at the office or agency of the Trustee in The City of New York or at the
office(s) of such Paying Agent(s) as the Company may designate from time to time
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Register or by transfer to an account maintained by the
Holder entitled thereto as specified in the Register, provided that proper
instructions have been received by the relevant record date. Notwithstanding
the foregoing, so long as the holder of this Debenture is the Property Trustee,
the payment of the principal of (and premium, if any) and interest on this
Debenture will be made in immediately available funds at such place and to such
account as may be designated by the Property Trustee.
The interest rate paid on the Debentures is subject to increase in
accordance with the procedures set forth herein. By 9:30 a.m., New York City
time, on the Market Rate Increase Date, a nationally recognized investment
banking firm chosen by the Company (the "Rate Increase Agent") will determine
whether the then current aggregate market value of the 6.86% Quarterly Income
Preferred Securities (the "QUIPS") representing undivided preferred beneficial
interests in the assets of the Trust (or if the QUIPS are no longer outstanding,
the Debentures), is at least equal to 100.25% of the Cash Equivalent of the
Aggregate Call Option Exercise Consideration (as hereinafter defined). If the
Rate Increase Agent determines that the current aggregate market value of the
QUIPS is at least equal to 100.25% of the Cash Equivalent of the Aggregate Call
Option Exercise Consideration (or the interest rate paid on the Debentures is
already equal to or greater than the Maximum Debenture Rate (as hereinafter
defined)), interest on the Debentures will continue to accrue at the Initial
Interest Rate. If the Rate Increase Agent determines that the current aggregate
market value of the QUIPS is not at least equal to 100.25% of the Cash
Equivalent of the Aggregate Call Option Exercise Consideration (and the interest
rate is less than the Maximum Debenture Rate), the Rate Increase Agent will, by
9:30 a.m., New York City time, on the Market Rate Increase Date, select an
increased rate equal to the lower of (a) the rate that the Rate Increase Agent
determines is sufficient to cause the then current aggregate market value of
such QUIPS (or, if the QUIPS are no longer outstanding, the Debentures) to be at
least equal to 100.25% of the Cash Equivalent of the Aggregate Call Option
Exercise Consideration and (b) the Maximum Debenture Rate, and the interest rate
will thereupon become that increased rate (the "Market Increase Rate"). Upon
any such increase to the Market Increase Rate, the Rate Increase Agent shall
notify the Company and the Call Option Holder (as hereinafter defined) of such
increased rate.
"Cash Equivalent of the Aggregate Call Option Exercise Consideration"
means the cash value on the Market Rate Increase Date of a package of
consideration (the "Aggregate Call Option Exercise Consideration"), which
includes U.S. Treasury Strips, U.S. Treasury Bills or other U.S. Treasury
Securities (any of the foregoing being referred to herein as the "Treasury
Securities"), that will provide payments matching the aggregate distributions
due on the QUIPS (or interest due on the Debentures if the Debentures have been
substituted for such QUIPS) through July 27, 2001, assuming that (a) the
Treasury Securities included in the Aggregate Call Option Exercise Consideration
are highly liquid Treasury Securities maturing on or within 35 days prior to
July 27, 2001 (any such Treasury Securities will be designated in good faith by
the holder of the call options on the QUIPS, (the "Call Option Holder") in a
notice delivered to the Rate Increase Agent by 8:30 a.m., New York City time, on
the Market Rate Increase Date or, if the Call Option Holder fails to so
designate such Treasury Securities, as designated in good faith by the Rate
Increase Agent, in either case in a manner intended to minimize the Cash
Equivalent of the Aggregate Call Option Exercise Consideration) and (b) such
Treasury Securities are valued based on the ask-side price thereof at 9:00 a.m.,
New York City time, on the Market Rate Increase Date (as determined on a same
day settlement basis by a reasonable and customary means selected in good faith
by the Rate Increase Agent and notified to the Call Option Holder prior thereto)
plus interest accrued thereon to such date.
"Maximum Debenture Rate" means (a) the yield to maturity (calculated
in accordance with standard market price) corresponding to the bid-side price at
9:00 a.m., New York City time, on the Market Rate Increase Date (as determined
by a reasonable and customary means selected in good faith by the Rate Increase
Agent and notified to the Call Option Holder prior thereto) of highly liquid
Treasury Securities maturing on or around the Maturity Date as selected in good
faith by the Rate Increase Agent plus (b) 350 basis points.
"Market Rate Increase Date" means April 27, 2001 (or, if such day is
not a Trading Day (as hereinafter defined), the next succeeding Trading Day).
"Trading Day" means a day on which the Class A, no par value common
stock of the Company (the "Common Stock") (a) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (b) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of the Common Stock.
If the Trust is required to pay any additional taxes, duties or other
governmental charges, the Company will pay such Additional Amounts on the
Debentures as may be necessary in order that the amount of distributions then
due and payable by the Trust on the outstanding QUIPS and the common undivided
beneficial interests in the Trust owned by the Company (the "Common Trust
Securities") and together with the QUIPS, the "Trust Securities") shall not be
reduced as a result of any such additional taxes, duties or other governmental
charges to which the Trust has become subject. In lieu of paying such
Additional Amounts on the Debentures, the Company may liquidate the Trust and
cause the Debentures to be distributed to the holders of the Trust Securities in
liquidation of the Trust.
If the Debentures are distributed to the holders of the Trust
Securities and are not otherwise pledged as collateral for the Company's 7.00%
Adjustable Conversion-rate Equity Security Units (the "Units"), the Debentures
may be represented by one or more global certificates registered in the name of
Cede & Co. or other nominee of the Depository Trust Company.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all present and future Senior Indebtedness (as
hereinafter defined), and this Debenture is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Debenture by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) 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 so
provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
"Senior Indebtedness" shall mean, with respect to the Company, (a) the
principal, premium, if any, and interest in respect of (i) indebtedness of the
Company for money borrowed and (ii) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company,
including, without limitation, any current or future indebtedness under any
indenture (other than the Indenture) to which the Company is a party, (b) all
capital lease obligations of the Company, (c) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (d) all obligations of the Company for the
reimbursement on any letter of credit, any banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction, (e) all obligations of the type referred to
in clauses (a) through (d) above of other persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise and (f) all
obligations of the type referred to in clauses (a) through (e) above of other
persons secured by any lien on any property or asset of the Company (whether or
not such obligation is assumed by the Company), except for (x) any indebtedness
between or among the Company or any Subsidiary of the Company, (y) any other
debt securities issued pursuant to the Indenture and guarantees in respect of
those debt securities and (z) any indebtedness that is by its terms subordinated
to or pari passu with the Debentures, including any junior subordinated debt
securities issued in the future with subordination terms substantially similar
to the Debentures. Senior Indebtedness shall continue to be Senior Indebtedness
and be entitled to the benefits of the subordination provisions irrespective of
any amendment, modification or waiver of any term of such Senior Indebtedness.
This Debenture is one of a duly authorized issue of securities of the
Company (the "Securities") issued under an Indenture, dated as of July 27,
1998, as amended or supplemented from time to time (the "Indenture"), between
the Company and First Union National Bank, as trustee (the "Trustee"), 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 Company, the Trustee and the Holders of the Debentures and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Debenture is one of the Securities designated on the face
hereof limited in aggregate principal amount to $135,035,453.00.
Any one or more of the following described events with respect to the
Debentures constitutes a "Debenture Event of Default" (whatever the reason for
such Debenture 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) failure for 30 days to pay any interest on the
Debentures when due (subject to the deferral of any due date in the case of an
Extension Period (as hereinafter defined)); or (b) failure to pay any principal
on the Debentures when due whether at maturity, by declaration of acceleration
of maturity or otherwise; or (c) failure to pay the Put Price when due upon
exercise of a Debenture Put Option (as hereinafter defined); or (d) failure to
observe or perform certain other covenants contained in the Indenture for 60
days after written notice to the Company from the Trustee or to the Company and
the Trustee from the holders of at least 25% in aggregate outstanding principal
amount of Debentures; or (e) the events of bankruptcy, insolvency or
reorganization of the Company set forth as Events of Default under the
Indenture .
If any Event of Default, as provided for the Indenture (including the
Debenture Events of Default), with respect to the Debentures shall occur and be
continuing, the principal of the Debentures may be declared due and payable in
the manner and with the effect provided in the Indenture.
So long as no Debenture Event of Default has occurred and is
continuing, the Company will have the right at any time during the term of the
Debentures to defer the payment of interest at any time or from time to time for
a period not extending beyond the Maturity Date (each such period of deferral,
an "Extension Period") or ending on a date other than an Interest Payment Date.
At the end of an Extension Period, the Company must pay all interest then
accrued and unpaid (together with interest thereon accrued at a rate of 6.86%
per annum (plus, for the period after the Market Rate Increase Date, the
difference, if any, between the Market Increase Rate and the Initial Interest
Rate) compounded on each succeeding Interest Payment Date). During an Extension
Period, interest will continue to accrue and Holders of Debentures will be
required to accrue interest income for United States Federal income tax purposes
prior to the receipt of cash attributable to such income except to the extent
that the tax treatment changes as a matter of law.
Prior to the expiration of any such Extension Period, the Company may
further extend such Extension Period, provided that such Extension Period,
together with all such previous and further extensions within such Extension
Periods, (i) shall not end on any date other than an Interest Payment Date and
(ii) shall not extend beyond the Maturity Date. Upon the termination of any
such Extension Period and the payment of all amounts then due on any Interest
Payment Date, 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 must give the Property
Trustee, the administrators of the Trust and the Trustee written notice of its
election of any Extension Period (or an extension thereof) at least five
Business Days prior to the earlier of (a) the date the distributions on the
Trust Securities would have been payable except for the election to begin or
extend such Extension Period, (b) the date the Trustees are required to give
notice to any securities exchange or to holders of QUIPS of the Regular Record
Date or the date such distributions are payable and (c) such Regular Record
Date. The Trustee shall give notice of the Company's election to begin or
extend a new Extension Period to the holders of the QUIPS. There is no
limitation on the number of times that the Company may elect to begin an
Extension Period.
The Company has agreed that it will not (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 capital stock, (b)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior in right of payment to the Debentures or (c) make any guarantee
payments with respect to any guarantee by the Company of any securities of any
subsidiary of the Company if such guarantee ranks pari passu or junior in right
of payment to the Debentures (other than, in the case of clauses (a), (b) and
(c), (i) dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, common stock of the Company, (ii) any
declaration of a dividend in connection with the implementation of a
stockholder's rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) payments under the guarantee agreement (the "Guarantee"), dated as of July
27, 1998, between the Company and the Trustee, pursuant to which the Company
guarantees the payment of distributions and other payments on the QUIPS to the
extent that the Trust has funds on hand sufficient therefor, (iv) as a result of
a reclassification of the Company's capital stock solely into shares of one or
more classes or series of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (v) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged and (vi) purchases of common stock in connection with the satisfaction
by the Company of its obligations under any of the Company's benefit plans for
its and its Subsidiaries' directors, officers or employees or any of the
Company's dividend reinvestment plans) if at such time (x) a Debenture Event of
Default shall have occurred and be continuing, (y) the Company shall be in
default with respect to its payment of any obligations under the Guarantee or
(z) the Company shall have given notice of its election of an Extension Period,
or any extension thereof, as provided in the Indenture and shall not have
rescinded such notice, and such Extension Period, or any extension thereof,
shall have commenced and not yet terminated.
The Company has also agreed (a) to maintain 100 percent ownership of
the Common Trust Securities; PROVIDED, HOWEVER, that any permitted successor of
the Company under the Indenture may succeed to the Company's ownership of the
Common Trust Securities, (b) to use its reasonable efforts to cause the Trust
(i) to remain a statutory business trust, except in connection with the
distribution of Debentures to the holders of Trust Securities in liquidation of
the Trust, the redemption of all of the Trust Securities of the Trust, or
certain mergers, consolidations or amalgamations, each as permitted by the
Amended and Restated Declaration of Trust of the Trust, dated as of July 27,
1998, among the Company, as sponsor, and certain of the trustees of the Trust
and (ii) to continue not to be classified as an association taxable as a
corporation or a partnership for United States Federal income tax purposes and
(c) to use its reasonable efforts to cause each holder of Trust Securities (or,
for so long as Trust Securities are pledged pursuant to the Pledge Agreement,
dated as of July 27, 1998, among the Company, a collateral agent, and the Call
Option Holder, the Units) to be treated as owning an undivided beneficial
interest in the Debentures.
Each Holder of Debentures will have the right (a "Debenture Put
Option") to require the Company to repurchase such Debentures, on July 27, 2001
(the "Put Option Date"), for a purchase price (the "Put Price") equal to the
aggregate principal amount thereof plus unpaid interest accrued thereon up to
but not including the Put Option Date, but only if the cash received on the
exercise of such option is used to settle the purchase contracts between the
Company and First Union National Bank as Master Unit Agent for the Units,
secured thereby.
The Holder of this Debenture and the Put Agent (the "Put Agent" which
initially will be The Chase Manhattan Bank and subsequently, any successor
thereto), on behalf of Holders whose Debentures have been delivered to the Put
Agent for the purpose of exercising the Put Option related to such Debentures,
may exercise the Debenture Put Option related to this Debenture by presenting
and surrendering this Debenture, at the offices of the Trustee, with the form of
"Notice of Exercise of Put Right" on the reverse side of this Debenture
completed and executed as indicated, by 10:00 a.m., New York City time, on the
Put Option Date.
In the event of the exercise of the Debenture Put Option with respect
to this Debenture in part only, a new Debenture or Debentures for the portion
hereof not repurchased will be issued in the name of the Holder upon the
cancellation hereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the outstanding Securities of each series, on
behalf of the Holders of all Securities of such series, to waive, with respect
to the Securities of such series, compliance by the Company 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 Debenture
will be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debenture issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Debenture.
Holders of Debentures may not enforce their rights pursuant to the
Indenture or the Debentures except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Debenture or of the Indenture
will alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, and premium, if any, and interest on and
the Put Price with respect to this Debenture at the times, places and rates,
herein prescribed.
The Debentures of this series are issuable only in registered form,
without coupons, in minimum denominations of $31.5625 and integral multiples
thereof and of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein specified and to the
limitations described below, if applicable, Debentures of this series are
exchangeable for Debentures of this series of like aggregate principal amount of
a different authorized denomination, as requested by the Holder surrendering the
same.
As provided in the Indenture and subject to certain limitations
therein specified and to the limitations described below, if applicable, the
transfer of this Debenture is registerable in the Register upon surrender of
this Debenture for registration of transfer at the office or agency of the
Company maintained for that purpose duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar (which will initially be the Trustee at its principal corporate trust
office located in Charlotte, North Carolina) duly executed by the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new
Debentures of this series with like terms and conditions, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue and
notwithstanding any notation of ownership or other writing hereon, and none of
the Company, the Trustee or any such agent will be affected by notice to the
contrary.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein, or its successor as Trustee, or its
Authenticating Agent, by manual signature of an authorized signatory, this
Debenture will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
No recourse shall be had for the repayment of the principal of or
premium, if any, on interest on or the Put Price in respect of this Debenture,
or for any claim based heron, or otherwise in respect hereof, or based on or in
respect of the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or any predecessor or
successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
The Company agrees, and each holder of a beneficial interest in any
Debenture shall by the acquisition of such interest be deemed to have agreed,
that for United States Federal income tax purposes the Debentures are intended
to constituted indebtedness, except to the extent that the tax treatment of the
Debenture changes as a matter of law.
The Indenture and the Debentures will be governed by and construed in
accordance with the laws of the State of New York.
All capitalized terms used but not defined in this Debenture will have
the meanings assigned to them in the Indenture; and all references in the
Indenture to "Security" or "Securities" will be deemed to include this
Debenture.
The following legend is provided in accordance with Treasury
Regulation Section 1.1275-3(b):
This Debenture was issued with original issue discount
("OID"). The Company will promptly, beginning no later than
10 days after the issue date of this Debenture make
available to a Holder upon request the information specified
in Treasury Regulation section 1.1275-3(b)(1)(i). Please
send only such requests to AmerUs Life Holdings, Inc., 699
Walnut Street, Des Moines, Iowa 50309, Attention: Taxation
Vice President and Tax Counsel.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Date: July ---, 1998 AMERUS LIFE HOLDINGS, INC.
By ----------------------------------
[SEAL]
Attest:
By ----------------------------------
<PAGE>
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: July ---, 1998 FIRST UNION NATIONAL BANK
as Trustee
By: ----------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
--------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) this Debenture to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ---------------------------------- agent to transfer this Debenture on the books
of the Company. 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
Debenture)
Signature Guarantee(1): ----------------------------------
- ----------------------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the [Registrar], which requirements include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of 1934, as amended.
<PAGE>
NOTICE OF EXERCISE OF PUT RIGHT
The undersigned holder of this Debenture (or the put agent on behalf
of such holder) hereby gives notice and irrevocably exercises the Junior
Subordinated Debenture Put requiring the Company to repurchase this Debenture,
or the portion designated below, for the aggregate principal amount thereof plus
any unpaid interest accrued on this Debenture pursuant to the terms and subject
to the conditions of the Debenture and the Indenture, dated as of July 27, 1998
(the "Indenture") between the Company and First Union National Bank, as trustee
by 10:00 a.m., New York City time, on July 27, 2001. If any portion of the
Debenture not to be repurchased is to be registered in the name of a Person
other than the undersigned, the undersigned will pay any transfer tax payable
incident thereto.
Date: ----------------------------------
Principal amount of the Debenture to be repurchased ($31.5625 or integral
multiples thereof or $1,000.00 or integral multiples thereof):
- ----------------------------------
Signature: --------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Debenture
Please print or type name and address, including zip code, and social security
or other
identifying number
- ----------------------------------
- ----------------------------------
- ----------------------------------
- ----------------------------------
If any portion of the Debenture is to be registered in the name of and delivered
to a Person other than the holder hereof please print or type name and address,
including zip code, and social security or other identifying number
- ----------------------------------
- ----------------------------------
- ----------------------------------
- ----------------------------------
Signature Guarantee(2): ----------------------------------
- ------------------------
(2) If this Notice of Exercise of Put Right is signed by any Person other than
the registered holder of this Debenture, the Signature must be guaranteed
by an "eligible guarantor institution" that is a bank, stockbroker, savings
and loan association or credit union meeting the requirements of the
[Registrar], which requirements include membership or participation in the
Securities Transfer Agents Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
Exhibit 4.14
===============================================================================
INDENTURE
between
AMERUS LIFE HOLDINGS, INC.
and
FIRST UNION NATIONAL BANK
as Trustee
Dated as of June 16, 1998
Providing for the Issuance of
Senior Debt Securities in Series
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions and Other Provisionsof General Application
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.02. Compliance Certificate and Opinions . . . . . . . . . . . . . . 11
Section 1.03. Forms of Documents Delivered to Trustee . . . . . . . . . . . . 12
Section 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.05. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . 15
Section 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . 15
Section 1.07. Headings and Table of Contents. . . . . . . . . . . . . . . . . 16
Section 1.08. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . 17
Section 1.09. Separability. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . 17
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 1.12. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE II
Security Forms
Section 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.02. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.03. Securities in Global Form . . . . . . . . . . . . . . . . . . . 19
Section 2.04. Form of Legend for Securities in
Global Form. . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III
The Securities
Section 3.01. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . 20
Section 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.03. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.04. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . 28
Section 3.05. Registration, Transfer and Exchange . . . . . . . . . . . . . . 29
Section 3.06. Replacement Securities. . . . . . . . . . . . . . . . . . . . . 33
Section 3.07. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . 34
Section 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . 37
Section 3.09. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . 38
Section 3.11. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . 38
Page
----
Section 3.12. Currency and Manner of Payment in
Respect of Securities. . . . . . . . . . . . . . . . . . . 38
Section 3.13. Appointment and Resignation of
Exchange Rate Agent. . . . . . . . . . . . . . . . . . . . 43
ARTICLE IV
Satisfaction, Discharge and Defeasance
Section 4.01. Termination of Company's Obligations
Under the Indenture. . . . . . . . . . . . . . . . . . . . 44
Section 4.02. Application of Trust Funds. . . . . . . . . . . . . . . . . . . 45
Section 4.03. Applicability of Defeasance Provisions;
Company's Option to Effect
Defeasance or Covenant Defeasance. . . . . . . . . . . . . 45
Section 4.04. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . 46
Section 4.05. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.06. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.07. Deposited Money and Government
Obligations to Be Held in Trust. . . . . . . . . . . . . . 49
Section 4.08. Repayment to Company. . . . . . . . . . . . . . . . . . . . . . 50
Section 4.09. Indemnity for Government Obligations. . . . . . . . . . . . . . 50
Section 4.10. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE V
Defaults and Remedies
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.02. Acceleration; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.03. Collection of Indebtedness and
Suits for Enforcement by Trustee . . . . . . . . . . . . . 54
Section 5.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . 55
Section 5.05. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . 56
Section 5.06. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . 56
Section 5.07. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . 56
Section 5.08. Control by Majority . . . . . . . . . . . . . . . . . . . . . . 56
Section 5.09. Limitation on Suits by Holders. . . . . . . . . . . . . . . . . 57
Section 5.10. Rights of Holders to Receive Payment. . . . . . . . . . . . . . 58
Section 5.11. Application of Money Collected. . . . . . . . . . . . . . . . . 58
Section 5.12. Restoration of Rights and Remedies. . . . . . . . . . . . . . . 58
Section 5.13. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . 59
Section 5.14. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . 59
Section 5.15. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . 59
Section 5.16. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . 59
Page
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ARTICLE VI
The Trustee
Section 6.01. Certain Duties and Responsibilities
of the Trustee . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . 60
Section 6.03. Trustee May Hold Securities . . . . . . . . . . . . . . . . . . 62
Section 6.04. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.05. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . 62
Section 6.06. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.07. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . 63
Section 6.08. Securityholder Lists. . . . . . . . . . . . . . . . . . . . . . 63
Section 6.09. Compensation and Indemnity. . . . . . . . . . . . . . . . . . . 63
Section 6.10. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . 64
Section 6.11. Acceptance of Appointment by Successor. . . . . . . . . . . . . 66
Section 6.12. Eligibility; Disqualification . . . . . . . . . . . . . . . . . 67
Section 6.13. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . 67
Section 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . 68
ARTICLE VII
Consolidation, Merger or Sale by the Company
Section 7.01. Consolidation, Merger or Sale of
Assets Permitted . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE VIII
Supplemental Indentures
Section 8.01. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . . . 71
Section 8.02. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 8.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . 74
Section 8.04. Execution of Supplemental Indentures. . . . . . . . . . . . . . 74
Section 8.05. Effect of Supplemental Indentures . . . . . . . . . . . . . . . 74
Section 8.06. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE IX
Covenants
Section 9.01. Payment of Principal, Premium,
if any, and Interest . . . . . . . . . . . . . . . . . . . 74
Section 9.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . 75
Page
----
Section 9.03. Money for Securities Payments to
be Held in Trust; Unclaimed Money. . . . . . . . . . . . . 76
Section 9.04. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.05. Reports by the Company. . . . . . . . . . . . . . . . . . . . . 78
Section 9.06. Annual Review Certificate; Notice
of Defaults or Events of Default . . . . . . . . . . . . . 79
Section 9.07. Books of Record and Account . . . . . . . . . . . . . . . . . . 79
ARTICLE X
Redemption
Section 10.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 79
Section 10.02. Election to Redeem Notice to Trustee . . . . . . . . . . . . . 79
Section 10.03. Selection of Securities to be Redeemed . . . . . . . . . . . . 80
Section 10.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 80
Section 10.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 82
Section 10.06. Securities Payable on Redemption Date. . . . . . . . . . . . . 82
Section 10.07. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 83
ARTICLE XI
Sinking Funds
Section 11.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 83
Section 11.02. Satisfaction of Sinking Fund
Payments with Securities . . . . . . . . . . . . . . . . . 84
Section 11.03. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
<PAGE>
INDENTURE, dated as of June 16, 1998 from AMERUS LIFE HOLDINGS, INC.,
an Iowa corporation (the "Company"), to FIRST UNION NATIONAL BANK (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") to be issued
in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.01. Definitions. (a) 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 GAAP (as hereinafter defined);
and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"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 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
"Board" or "Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the Board of Directors of the
Company.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"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 Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
the Treasurer, the Assistant Treasurer, the Controller or a Vice President of
the Company.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the issuer of such currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit other than the ECU
for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee in which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 230 South Tryon
Street, 9th Floor, Charlotte, North Carolina 28288-1179, Attention: Corporate
Trust Dept.
"Currency Unit" or "currency unit" for all purposes of this Indenture
shall mean any composite currency.
"Debt" means indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"Depository" when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.01 until a
successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Agent", when used with respect to Securities of or
within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, a bank designated pursuant to Section 3.01
or Section 3.13 (which may include any such bank acting as Trustee hereunder).
"Exchange Rate Officer's Certificate" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount in the relevant currency or
currency unit), payable with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation, signed by the Chief
Financial Officer, the Treasurer, the Controller, any Vice President or the
Assistant Treasurer of the Company.
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"GAAP" means United States generally accepted accounting principles,
in effect as of the date of this Indenture, as set forth in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.01, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.01, such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States or such other government, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of a coupon appertaining thereto and, with respect to a Registered Security, a
person in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City, London or other principal market for such currency or currency unit in
question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. If there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the market
to be used in respect of such currency or currency unit shall be that upon which
a nonresident issuer of securities designated in such currency or currency unit
would purchase such currency or currency unit in order to make payments in
respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or a Vice President of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"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, or portions thereof, for whose payment or redemption
money in the necessary amount and in the required currency or Currency Unit
has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.04, with
respect to which the Company has effected defeasance as provided in Article
IV; and
(iv) Securities which have been paid pursuant to Section 3.06 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 which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (W) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such Determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.02, (X) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (W) above) of such Security, (Y) the principal amount of any
Indexed Security that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such security pursuant to Section 3.01, and
(Z) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually 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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest and any other payments on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to the determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest and any other payments on such Securities are payable as
specified as contemplated by Sections 3.01.
"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 3.06 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.
"Principal Amount", when used with respect to any Security, means the
amount of principal, if any, payable in respect thereof at Maturity; PROVIDED,
HOWEVER, that when used with respect to an Indexed Security in any context other
than the making of payments at Maturity, "principal amount" means the principal
face amount of such Indexed Security at original issuance.
"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, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee, shall
mean the chairman or any vice chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any senior vice president, any
vice president, any assistant vice president, the secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer, the controller, any assistant controller, or any
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
on such Security or on a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation more
than 50% of the combined voting power of the outstanding Voting Stock of which
is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof, (ii) any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof, or
(iii) any other Person which is otherwise controlled by such Person or by one or
more other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries of such Person.
"Total Assets" means, at any date, the total assets appearing on the
most recently prepared consolidated balance sheet of the Company and its
consolidated Subsidiaries as of the end of a fiscal quarter of the Company,
prepared in accordance with GAAP.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.03.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.01, the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.01, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Voting Stock" of any Person means capital stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
TERM Section
"Act" 1.04(a)
"Additional Amount" 3.01(17)
"Bankruptcy Law" 5.01
"Component Currency" 3.12(h)
"Conversion Date" 3.12(d)
"Custodian" 5.01
"Defaulted Interest" 3.07(b)
"Election Date" 3.12(h)
"Event of Default" 5.01
"Judgment Date" 5.16
"Notice of Default" 5.01(3)
"Register" 3.05
"Registrar" 3.05
"Substitute Date" 5.16
"Valuation Date" 3.12(c)
Section 1.02. Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take an action under any
provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, 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 with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.03 and 9.06) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Forms 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 as to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by 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 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 conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depository, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(d) The ownership of Registered Securities shall be proved by the
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) If the Company shall solicit from the Holders of any series any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of such series entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so, provided that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.02, (iii) any direction referred to in Section 5.08 or (iv) any
request to institute proceedings referred to in Section 5.09(2), and (v) any
waiver of past defaults pursuant to Section 5.07, in each case with respect to
Securities of such series. If such a record date is fixed pursuant to this
paragraph, the relevant action may be taken or given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be holders of a series for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities of such
series have authorized or agreed or consented to such action, and for that
purpose the Outstanding Securities of such series shall be computed as of such
record date; PROVIDED that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date. 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 canceled 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 of the relevant series 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 and the proposed
action by Holders to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
Section 1.05. Notices, Etc., to Trustee and 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,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) in
writing and mailed, first-class postage prepaid, to the Trustee at its
Corporate Trust Office at 230 South Tryon Street, 9th Floor, Charlotte,
North Carolina 28288-1179, Attention: Corporate Trust Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at AmerUs Life Holdings, Inc., 699 Walnut Street, Des Moines, Iowa
50309, Attention: General Counsel or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of an event (i) if any of the Securities affected
by such event are Registered Securities, such notice to the Holders thereof
shall be sufficiently given unless otherwise herein expressly provided) if in
writing and mailed first-class postage prepaid to each such Holder affected by
such event, at his address as it appears in the Register within the time
prescribed for the giving of such notice and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.01.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders of
Bearer Securities by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice with respect to any Holders of Registered Securities given as
provided herein. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder with respect to
a Holder of Registered Securities. If it is impossible or, in the opinion of
the Trustee, impracticable to give any notice by publication in the manner
herein required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such notice
with respect to a Holder of Bearer Securities.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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 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.
Section 1.07. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.08. Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
Section 1.09. Separability. In case any provision of this Indenture
or 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 1.10. Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. This Indenture, the Securities and any
coupons appertaining thereto shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of laws. This Indenture is subject to the Trust Indenture Act and if any
provision hereof limits, qualifies or conflicts with any provision of the Trust
Indenture Act, which 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 which
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. Whether or
not this Indenture is required to be qualified under the Trust Indenture Act,
the provisions of the Trust Indenture Act required to be included in an
indenture in order for such indenture to be so qualified shall be deemed to be
included in this Indenture with the same effect as if such provisions were set
forth herein and any provisions hereof which may not be included in an indenture
which is so qualified shall be deemed to be deleted or modified to the extent
such provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.12. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of an series which specifically
states that such provision shall apply in lieu of this Section) payment of
principal, premium, if any, or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such date;
provided that to the extent such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.01. Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depository
therefor or as may, consistently herewith, be determined by the officers
executing such Securities and coupons, if any, as evidenced by their execution
of the Securities and coupons, if any. If temporary Securities of any series
are issued as permitted by Section 3.04, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or coupons, if any, shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved boarders or may be produced in any
other manner, all as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Securities and coupons,
if any.
Section 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
----------------------------,
as Trustee
By: --------------------------
Authorized Signatory
Section 2.03. Securities in Global Form. If Securities of or within
a series are issuable in whole or in part in global form, any such Security of
such series may provide that it shall represent the aggregate or specified
amount of Outstanding Securities of such series from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be reduced or increased
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.03 or 3.04.
Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. Any instructions by the Company with respect
to endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 1.02 hereof and need not be
accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to
any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.03.
Notwithstanding the provisions of Section 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Section 2.04. Form of Legend for Securities in Global Form. Any
Registered Security in global form authenticated and delivered hereunder shall
bear a legend in substantially the following form with such changes as may be
required by the Depository:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
ARTICLE III
The Securities
Section 3.01. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
securities of the series pursuant to Section 3.04, 3.05, 3.06, 8.06, or
10.07);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and, with respect
to Registered Securities, the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 10.03, the manner in which the particular
Securities of such series (if less than all Securities of such series are
to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, if Registered Securities, and if other than the denomination of
$5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(9) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of Section 3.12;
(10) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit
or units) other than that in which such Securities are denominated or
designated to be payable, the currency or currencies (including currency
unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto in accordance with, in addition to, or in lieu of the
provisions of Section 3.12;
(11) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined;
(12) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 5.02 or the
method by which such portion shall be determined;
(13) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(14) if other than as provided in Section 3.07, the Person to whom any
interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(15) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(16) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.01 or covenants of the Company set forth
in Article IX pertaining to the Securities of the series;
(17) under what circumstances, if any, the Company will pay additional
amounts on the Securities of that series held by a Person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted
("Additional Amounts") and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts (and the
terms of any such option);
(18) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or
both, and any restrictions applicable to the offering, sale or delivery of
Bearer Securities and, if other than as provided in Section 3.05, the terms
upon which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
(19) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(20) the forms of the Securities and coupons, if any, of the series;
(21) the applicability, if any, to the Securities of or within the
series of Sections 4.04 and 4.05, or such other means of defeasance or
covenant defeasance as may be specified for the Securities and coupons, if
any, of such series, and, if the Securities are payable in a currency other
than Dollars, whether, for the purpose of such defeasance or covenant
defeasance the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of the
United States or an agency or instrumentality of the United States;
(22) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(23) the designation of the initial Exchange Rate Agent, if any;
(24) if the Securities of the series shall be issued in whole or in
part in global form (i) the Depository for such global Securities, (ii) the
form of any legend in addition to or in lieu of that in Section 2.04 which
shall be borne by such global Security, (iii) whether beneficial owners of
interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of
any authorized form and nomination, and (iv) if other than as provided in
Section 3.05, the circumstances under which any such exchange may occur;
and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection with
the marketing of Securities of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.03) set forth or
determined in the manner provided, in the related Officers' Certificate or (iii)
in an indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
Section 3.02. Denominations. Unless otherwise provided as
contemplated by Section 3.01, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000
and any integral multiples thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by two Officers. The
Company's seal shall be reproduced on the Securities. The signatures of any of
these officers on the Securities may be manual or facsimile. The coupons, if
any, of Bearer Securities shall bear the facsimile signature of two Officers.
Securities and coupons 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, the Company may deliver Securities,
together with any coupons appertaining thereto, of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; PROVIDED,
HOWEVER, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including without limitation, the receipt
by the Trustee of oral or electronic instructions from the Company or its duly
authorized agents, promptly confirmed in writing) acceptable to the Trustee as
may be specified by or pursuant to a Company Order delivered to the Trustee
prior to the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.0l, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating,
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
2.01, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
3.01, that such terms have been, or in the case of Securities of a series
offered in a Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject in the case of Securities offered in
a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities together with any coupons appertaining
thereto, when authenticated and delivered by the trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles and
except further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Securities denominated other than in
Dollars (or a Foreign Currency or currency unit judgment in respect of such
claim) be converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the written opinion of counsel to the Trustee (which counsel may be an employee
of the Trustee) reasonably acceptable to the Company, the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee. Notwithstanding the generality of
the foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.01 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 3.01 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities of such series in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legends set forth in Section 2.04 and the terms of the Board Resolution or
supplemental indenture relating to such series.
Each Depository designated pursuant to Section 3.01 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depository is so registered. Each Depository shall enter into an agreement with
the Trustee and the Company governing the respective duties and rights of such
Depository, the Company and the Trustee with regard to Securities issued in
global form.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 3.01.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
the certificate of authentication substantially in the form provided herein is
executed by the manual signature of one of the authorized signatories of the
Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.06
or 3.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.04. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, 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
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.02 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; PROVIDED, HOWEVER, that no definitive Bearer Security, except as may be
provided pursuant to Section 3.01, shall be delivered in exchange for a
temporary Registered Security; and provided further that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
or pursuant to the Board Resolutions relating thereto and such delivery shall
occur only outside the United States. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series except as otherwise
specified as contemplated by Section 3.01.
Section 3.05. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.02
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.02 in a
Place of Payment for that series, the Company shall execute and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.01, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 9.02, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any
series is surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depository designated for such series or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depository for such series to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depository for the
Securities of such series or defaults in the performance of its duties as
Depository or if at any time the Depository for the Securities of such series
shall no longer be eligible under Section 3.03, the Company shall appoint a
successor Depository with respect to the Securities of such series. If a
successor Depository for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company selection pursuant to Section 3.01(b)(24)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depository for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new certificated
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Security in global form; and
(ii) to such Depository a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company
shall 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 upon any
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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 8.06 or 10.07 not involving any
transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of, or exchange any Securities of that series for a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption under
Section 10.03 and ending at the close of business on the day of such mailing;
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part; or (iii) to exchange any Bearer Security so
selected for redemption, except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor; PROVIDED that such
Registered Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.06. Replacement Securities. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, 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 a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the Trustee's
requirements are met, containing identical terms and of like tenor and of like
principal amount.
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
or coupon 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 or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a replacement Registered Security, if such Holder's Claim appertains to a
Registered Security, or a replacement Bearer Security with coupons corresponding
to the coupons appertaining to the destroyed, lost or stolen Bearer Security or
the Bearer Security to which such lost, destroyed or stolen coupon appertains,
if such Holder's claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding with coupons corresponding to the coupons, if
any, appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; PROVIDED, HOWEVER, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.02, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.01, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require that 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, its agents and
counsel) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, 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 or coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, interest, if any, on any Registered 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.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, (i) interest, if any, on Bearer Securities shall be
paid only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original issue
discount, if any, on Bearer Securities shall be paid only against presentation
and surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer Security to be treated as
a "registration-required obligation" under United States laws and regulations.
The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, any interest on Registered Securities of
any series which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date for such Registered Securities (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holders on the
relevant Regular Record Date by virtue of their having been such Holders, 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 such Defaulted
Interest to the Persons in whose names such Registered 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 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 (1) 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 of such Registered
Securities at his address as it appears in the 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 such Registered 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). In case a Bearer Security of
any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.05, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.08. Persons Deemed Owners. Prior to due presentment of any
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Sections 3.05 and 3.07) interest on and Additional Amounts with respect to
such Registered Security and for all other purposes whatsoever, whether or not
such Registered 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon 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.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee) as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.09. Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not be required to, dispose of canceled
Securities and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise specified
as contemplated by Section 3.01, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, in such case, 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.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal of, premium, if any, and interest, if any,
on any Registered or Bearer Security of such series will be made in the currency
or currencies or currency unit or units in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section
3.12 may be modified or superseded pursuant to Section 3.01 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.01, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.01, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article IV or with respect to which a
notice of redemption has been given by or on behalf of the Company pursuant to
Article X). Any Holder of any such Registered Security who shall not have
delivered any such Election to the Trustee (or any applicable Paying Agent) not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant currency or
currency unit as provided in Section 3.12(a). The Trustee (or the applicable
Paying Agent) shall notify the Exchange Rate Agent as soon as practicable after
the Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) If the election referred to in paragraph (b) above has been
provided for with respect to any Registered Securities of a series pursuant to
Section 3.01, then, unless otherwise specified pursuant to Section 3.01 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.01, and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 3.01, on the second Business Day
immediately preceding such payment date the Company will deliver to the Trustee
(or the applicable Paying Agent) an Exchange Rate Officers' Certificate in
respect of the Dollar, Foreign Currency or Currencies, ECU or other currency
unit payments to be made on such payment date. Unless otherwise specified
pursuant to Section 3.01, the Dollar, Foreign Currency or Currencies, ECU or
other currency unit amount receivable by Holders of Registered Securities who
have elected payment in a currency or currency unit as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
ECU or any other currency unit in which any of the Securities are denominated or
payable otherwise than pursuant to an election provided for pursuant to
paragraph (b) above, then, with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
be the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.01, the Dollar
amount to be paid by the Company to the Trustee or any applicable Paying Agent
and by the Trustee or any applicable Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or in the case of a Foreign Currency that is a currency unit, the
Dollar Equivalent of the Currency limit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder
of a Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
as provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would have been made
in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.12 (but, subject to any contravening
valid election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or currency
unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and, subject to the provisions of paragraph (h)
below, shall be the sum of each amount obtained by converting the specified
amount of each Component Currency (as each such term is defined in paragraph (h)
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant to
Section 3.01 by which the written election referred to in Section
3.12(b) may be made.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
such Component Currency represented in the relevant currency unit,
including, but not limited to, ECU, on the Conversion Date. If after
the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective
specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of
such replacement, shall be equal to the Specified Amount of such
former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, ECU, a Conversion Event (other
than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee (and any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee of the appropriate
series of Securities (or any applicable Paying Agent) and to the Exchange Rate
Agent (and the Trustee (or such Paying Agent) will promptly thereafter give
notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a
Conversion Event has occurred with respect to ECU or any other currency unit in
which Securities are denominated or payable, the Company will promptly give
written notice thereof to the Trustee (or any applicable Paying Agent) and to
the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee (or any applicable Paying Agent)
and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.13. Appointment and Resignation of Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as the
Securities of any series (i) are denominated in a currency other than Dollars or
(ii) may be payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.12 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currencies or currency unit or units into the applicable
payment currency or currency unit for the payment of principal, premium, if any,
and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01 at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies or currency unit or units).
ARTICLE IV
Satisfaction, Discharge and Defeasance
Section 4.01. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any coupons
appertaining thereto (except as to any surviving rights of registration of
transfer or exchange of such Securities and replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any coupons appertaining thereto when (1) either
(A) all such Securities previously authenticated and delivered and all
coupons appertaining thereto (other than (i) such coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has
been waived as provided in Section 3.05, (ii) such Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or
paid, as provided in Section 3.06, (iii) such coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in Section
10.06 and (iv) such Securities and coupons 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 9.03) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii)
if redeemable at the option of the Company, are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which the Securities of such series
are payable, sufficient to pay and discharge the entire indebtedness on
such Securities and such coupons not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and interest, and any
Additional Amounts payable as specified pursuant to Section 3.01(b)(17)
with respect thereto, 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 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 as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.09, the obligations of the Company to any Authenticating Agent under
Section 6.14 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 4.02 and the last paragraph of Section 9.03 shall survive.
Section 4.02. Application of Trust Funds. Subject to the provisions
of the last paragraph of Section 9.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal, premium, if any, and any interest for whose
payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
Section 4.03. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.01
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.04 or (ii) covenant defeasance of the Securities
of or within a series under Section 4.05, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.06
through 4.09 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.01 with respect to any Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 4.04 (if
applicable) or Section 4.05 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 4.04. Defeasance and Discharge. Upon the Company's exercise
of the option specified in Section 4.03 applicable to this Section with respect
to the Securities of or within a series, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 4.06 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.07 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall on a Company
Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining thereto to
receive solely from the trust funds described in Section 4.06(a) and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest, if any, on such Securities or any coupons
appertaining thereto when such payments are due; (ii) the Company's obligations
with respect to such Securities under Sections 3.04, 3.05, 3.06, 9.02 and 9.03
and with respect to the payment of additional amounts, if any, payable with
respect to such Securities as specified pursuant to Section 3.01(b)(17); (iii)
the rights, powers trusts, duties and immunities of the Trustee hereunder and
(iv) this Article IV. Subject to compliance with this Article IV, the Company
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 4.05 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may
not be accelerated because of an Event of Default.
Section 4.05. Covenant Defeasance. Upon the Company's exercise of
the option specified in Section 4.03 applicable to this Section with respect to
any Securities of or within a series, the Company shall be released from its
obligations under Sections 7.01(3), 7.01(4) and 9.07 and, if specified pursuant
to Section 3.01, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.06 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.01(3), 7.01(4)and 9.07 or such other
covenant but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.01(3) or 5.01(7), or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.06. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.04 or Section 4.05
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.12 who shall agree to comply with and shall be
entitled to the benefits of, the provisions of Sections 4.03 through 4.09
inclusive and the last paragraph of Section 9.03 applicable to the Trustee,
for purposes of such Sections also a "Trustee") as trust funds in trust for
the purpose of making the payments referred to in clauses (x) and (y) of
this Section 4.06(a), specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons
appertaining thereto, with instructions to the Trustee as to the
application thereof, (A) money in an amount (in such currency, currencies
or currency unit or units in which such Securities and any coupons
appertaining thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the option of
Holders, Government Obligations which through the payment of interest,
principal, premium, if any, and any Additional Amounts in respect thereof
in accordance with their terms will provide not later than one day before
the due date of any payment referred to in clause (x) or (y) of this
Section 4.06(a), money in an amount or (C) a combination thereof in an
amount, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge
(x) the principal of, premium, if any, and interest, if any, and any
Additional Amounts on such Securities and any coupons appertaining thereto
on the Maturity of such principal or installment of principal or interest
and (y) any mandatory sinking fund payments applicable to such Securities
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and such Securities and any coupons
appertaining thereto. Before such a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date or dates in accordance with Article X which shall be given
effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under,
this Indenture or result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a
party or by which it is bound.
(c) In the case of an election under Section 4.04, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such
Securities and any coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.05, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.04 or the covenant defeasance
under Section 4.05 (as the case may be) including those contained in this
Section 4.06 other than the 90 day period specified in Section 4.06(g),
have been complied with.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(g) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.01(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(h) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940 unless such trust shall
be registered under such Act or exempt from registration thereunder.
(i) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.01.
Section 4.07. Deposited Money and Government Obligations to Be Held
in Trust. Subject to the provisions of the last paragraph of Section 9.03, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.01) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.06 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto 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 Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, and any Additional Amounts,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.01, if, after a deposit referred to in Section 4.06(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.06(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.12(d)
or 3.12(e) or by the terms of any Security in respect of indebtedness which the
deposit pursuant to Section 4.06(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of, premium, if any, and interest, if any, on such Security as the
same becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such currency or currency
unit in effect on the second Business Day prior to each payment date, except,
with respect to a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
Section 4.08. Repayment to Company. Subject to the last paragraph of
Section 9.03, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
Section 4.09. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest and any other amount received on such
Government Obligations.
Section 4.10. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money or Government Obligations, as the case may be, in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture, such Securities and any coupons appertaining thereto from which the
Company has been discharged or released pursuant to Section 4.04 or 4.05 shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money or Government Obligations, as the
case may be, held in trust pursuant to Section 4.07 with respect to such
Securities and any coupons appertaining thereto in accordance with this Article;
PROVIDED, HOWEVER, that if the Company makes any payment of principal of or any
premium or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities or coupons to receive such payment from the money or
Government Obligations, as the case may be, so held in trust.
ARTICLE V
Defaults and Remedies
Section 5.01. Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if (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 payment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series
as specified pursuant to Section 3.01(b)(17) when the same becomes due
and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
any premium on any Security of that series when the same becomes due
and payable at its Maturity or on redemption or otherwise, or in the
payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series;
(3) the Company fails to comply in any material respect with any
of its agreements or covenants in, or any of the provisions of, this
Indenture with respect to any Security of that series (other than an
agreement, covenant or provision for which non-compliance is elsewhere
in this Section specifically dealt with), and such non-compliance
continues for a period of 60 days after there has been given by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of the series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) a default under any mortgage, agreement, indenture or
instrument under which there may be issued, or by which there may be
secured, guaranteed or evidenced any Debt of the Company (including
this Indenture) whether such Debt now exists or shall hereafter be
created, in an aggregate principal amount then outstanding of
$25,000,000 or more, which default (a) shall constitute a failure to
pay any portion of the principal of such Debt when due and payable
after the expiration of an applicable grace period with respect
thereto or (b) shall result in such Debt becoming or being declared
due and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not be rescinded or
annulled, or such Debt shall not be paid in full within a period of 30
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series a written notice specifying such
event of default and requiring the Company to cause such acceleration
to be rescinded or annulled or to pay in full such Debt and stating
that such notice is a "Notice of Default" hereunder; (it being
understood however, that the Trustee shall not be deemed to have
knowledge of such default under such agreement or instrument unless
either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) a Responsible Officer of the Trustee
shall have received written notice thereof from the Company, from any
Holder, from the holder of any such indebtedness or from the trustee
under any such agreement or other instrument); PROVIDED, HOWEVER, that
if such default under such agreement or instrument is remedied or
cured by the Company or waived by the holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of such
Holders; PROVIDED, FURTHER, that the foregoing shall not apply to any
secured Debt under which the obligee has recourse (exclusive of
recourse for ancillary matters such as environmental indemnities,
misapplication of funds, costs of enforcement and the like) only to
the collateral pledged for repayment so long as the fair market value
of such collateral does not exceed 2% of Total Assets at the time of
the default;
(5) the Company, pursuant to or within the meaning of any
Bankruptcy Law, (A) commences a voluntary case or proceeding, (B)
consents to the entry of an order for relief against it in an
involuntary case or proceeding, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its property, (D)
makes a general assignment for the benefit of its creditors, (E) makes
an admission in writing of its inability to pay its debts generally as
they become due or (F) takes corporate action in furtherance of any
such action;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company,
in an involuntary case, (B) adjudges the Company as bankrupt or
insolvent, or approves as properly filed a petition seeking
reorganization, arrangement, and adjustment or composition of or in
respect of the Company, or appoints a Custodian of the Company, or for
all or substantially all of its property, or (C) orders the
liquidation of the Company and the decree remains unstayed and in
effect for 60 days; or
(7) any other Event of Default provided as contemplated by
Section 3.01 with respect to Securities of that series.
The Company shall deliver to the Trustee, within 90 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is or with the giving of notice or the lapse of time would
become an event which is or with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
As used in the Indenture, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar federal or state bankruptcy, insolvency,
reorganization or other law for the relief of debtors. As used in the
Indenture, the term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Section 5.02. Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series
by written notice to the Company (and if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the Original
principal amount as may be specified in the terms of that series) of and accrued
interest, if any, on all the Securities of that series to be due and payable and
upon any such declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount) and interest,
if any, shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgement or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to 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) in the currency or currency unit in which that series of
Securities is payable, all overdue interest on all Securities of that
series and any related coupons and any Additional Amounts,
(B) in the currency or currency unit in which that series of
Securities is payable, the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities and any Additional Amounts payable, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all existing Defaults and Events of Default with respect to
Securities of that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.07. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest or any Additional
Amounts becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, if any, the whole amount then due and
payable on such Securities and coupons for principal, premium, if any, and
interest and any Additional Amounts, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal,
premium, if any, and on any overdue interest and any Additional Amounts, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents and take such actions
authorized under the Trust Indenture Act as may be necessary or advisable in
order to have the claims of the Trustee and the Holders of Securities allowed in
any judicial proceedings relating to the Company, its creditors or its property.
In particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.09.
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 of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon 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 5.05. 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, in its own name as an
express trust, without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto and any recovery of
judgment shall, after provision for the reasonable fees and expenses of the
Trustee and its counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect to which judgment was recovered.
Section 5.06. Delay or Omission Not Waiver. No delay or omission by
the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of Default. Every
right and remedy given by this Article or by law to the Trustee or to the
Holders of Securities or coupons may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of Securities
or coupons, as the case may be.
Section 5.07. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of Outstanding Securities of any series by written
notice to the Trustee may waive on behalf of the Holders of all Securities of
such series and any related coupons a past Default or Event of Default with
respect to that series and its consequences except (i) a Default or Event of
Default in the payment of the principal of, premium, if any, or interest or any
Additional Amounts on any Security of such series or any coupon appertaining
thereto or (ii) in respect of a covenant or provision hereof which pursuant to
Section 8.02 cannot be amended or modified without the consent of the Holder of
each Outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture.
Section 5.08. Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) 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 it with respect to
Securities of that series; PROVIDED, HOWEVER, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting or of any other series
for which the Trustee is trustee, or that would in the good faith judgment of
the Trustee have a substantial likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. Prior to the taking of
any action hereunder, the Trustee shall be entitled to reasonable
indemnification satisfactory to the Trustee against all losses and expenses
caused by taking or not taking such action. This paragraph shall be in lieu of
Section 316(a)(1)(A) of the Trust Indenture Act and such Section 316(a)(1)(A) is
hereby expressly excluded from this Indenture, as permitted By the Trust
Indenture Act.
Section 5.09. Limitation on Suits by Holders. No Holder of any
Security of any series or any coupons appertaining thereto shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a 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 indemnity
satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security or
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.05 and 3.07, interest on the Security and any Additional Amounts, on
or after the respective due dates expressed in the Security (or, in case of
redemption, on the redemption dates), and the right of any Holder of a coupon to
receive payment of interest due as provided in such coupon, or, subject to
Section 5.09, to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, and any Additional Amounts upon presentation of the Securities or
coupon or both and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 6.09;
SECOND: to Holders of Securities and coupons in respect of which
or for the benefit of which such money has been collected for amounts due
and unpaid on such Securities for principal of, premium, if any, and
interest or any Additional Amounts, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Securities
for principal, premium, if any, and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee or
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders of Securities and coupons
shall continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or 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 existing right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. 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.
Section 5.15. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorney's fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant PROVIDED that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or by the Trustee.
Section 5.16. Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Security or any related coupon, it shall become necessary to convert
into any other currency or currency unit any amount in the currency or currency
unit due hereunder or under such Security or coupon, then such conversion shall
be made by the Exchange Rate Agent at the Market Exchange Rate as in effect on
the date of entry of the judgment (the "Judgment Date"). If pursuant to any
such judgment, conversion shall be made on a date (the "Substitute Date") other
than the Judgment Date and there shall occur a change between the Market
Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as
in effect on the Substitute Date, the Company agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is equal to
the amount in such other currency or currency unit which, when converted at the
Market Exchange Rate as in effect on the Judgment Date, is the amount due
hereunder or under such Security or coupon. Any amount due from the Company,
under this Section 5.16 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security or coupon. In no event, however, shall
the Company be required to pay more in the currency or currency unit due
hereunder under such Security or coupon at the Market Exchange Rate as in effect
on the Judgment Date than the amount of currency or currency unit stated to be
due hereunder or under such Security or coupon so that in any event the
Company's obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, and the
Company shall be entitled to withhold (or be reimbursed for, as the case may be)
any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
ARTICLE VI
The Trustee
Section 6.01. Certain Duties and Responsibilities of the Trustee.
(a) The Trustee's duties and responsibilities under this Indenture shall be
governed by the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Section 6.02. Rights of Trustee. Subject to the provisions of the
Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.03 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and/or require an Officers' Certificate. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written or oral advice of counsel
reasonably acceptable to the Company and the Trustee (which advice, if oral,
counsel shall promptly confirm in writing to the Trustee), a certificate of an
Officer or Officers delivered pursuant to Section 1.02, an Officers' Certificate
or an Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(e) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(f) The Trustee shall not be required 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 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.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may seem fit, and, if the Trustee shall determine to
make such further inquiry or investigation it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney.
(h) 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.
(i) 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 6.02.
Section 6.03. Trustee May Hold Securities. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company, in its in individual or
any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or Subsidiary with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.04. 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 upon in writing with
the Company.
Section 6.05. Trustee's Disclaimer. The recitals contained herein
and in the Securities, except the Trustee's certificate of authentication, shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or accuracy of this Indenture or the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.
Section 6.06. Notice of Defaults. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to a
Responsible Officer of the Trustee, the Trustee shall, within 90 days after it
occurs, transmit by mail to the Holders of Securities of such series, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all Defaults known to it unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that except in the case of a Default in payment on
the Securities of any series, the Trustee may withhold the notice if and so long
as the board of directors, the executive committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is in
the interests of Holders of Securities of that series; and PROVIDED, FURTHER,
that in the case of any Default of the character specified in Section 5.01(3)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 6.07. Reports by Trustee to Holders. Within 60 days after
each May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act. A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which the Securities are listed,
with the Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange.
Section 6.08. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of
any series Outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.09. Compensation and Indemnity. (a) The Company shall pay
to the Trustee from time to time such reasonable compensation for its services
as the Company and the Trustee shall agree in writing from time to time. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture, except any such expense
as may be attributable to its negligence or bad faith. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee and any Predecessor
Trustee, for and hold it harmless against, any loss or liability damage, claim
or reasonable expense including taxes (other than taxes based upon or determined
or measured by the income of the Trustee) incurred by it arising out of or in
connection with its acceptance or administration of the trust or trusts
hereunder, including the reasonable 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 Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(c) The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, any interest and any Additional
Amounts, on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(5) or Section 5.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
Section 6.10. Replacement of Trustee. (a) The resignation or removal
of the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for any least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.12 of
this Indenture or Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a Security for at least six
months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge of
the Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act,
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
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
(e) If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee with respect to the Securities to that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.11. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee, without further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
or the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by another such Trustee and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to the successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 1.06. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.12. Eligibility; Disqualification. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital
and surplus of at least $100,000,000. If such Trustee publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of such
Trustee 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 heretofore specified
in this Article.
Section 6.13. 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 to the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which Instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.01, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State 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 authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
---------------------------
as Trustee
By:-----------------------------
as Authenticating Agent
By:-----------------------------
Authorized Signatory
ARTICLE VII
Consolidation, Merger or Sale by the Company
Section 7.01. Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate with or merge with or into, or transfer or lease
all or substantially all of its assets to, any Person unless:
(1) the Person formed by or surviving any such consolidation or
any merger (if other than the Company), or to which such transfer or lease
shall have been made, is a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such transfer or lease
shall have been made, expressly assumes by supplemental indenture hereto
executed and delivered to the Trustee, inform satisfactory to the Trustee,
the due and punctual payment of the principal, premium, if any, interest,
if any and any Additional Amounts, with respect to all of the Securities
and the performance or observance of every covenant under this Indenture
and the Securities on the part of the Company to be performed under the
Securities, the coupons and this Indenture;
(3) immediately after giving effect to the transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary of the Company as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such transaction
no Default or Event of Default exists and is continuing; and
(4) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by the Securities of any series,
the Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure such Securities equally
and ratably with all indebtedness secured thereby.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided
in clause (2) above, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and, except in the case
of a lease, any coupons appertaining thereto and all such obligations of the
Company shall terminate.
ARTICLE VIII
Supplemental Indentures
Section 8.01. 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
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are
to be for the benefit less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all
or any series of Securities (and if such Events of Default are to be for
the benefit of less than all series of Securities, stating that such Events
of Default are expressly included solely for the benefit of such series);
or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of Bearer
Securities (including, without limitation to provide that Bearer Securities
may be registrable as to principal only) or to facilitate the issuance of
Securities in global form; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United states (including any of the
States and District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or coupons, if any; or
(10) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series; or
(11) to cure an ambiguity or correct any mistake, provided such
action shall not adversely affect the interests of the Holders of
Securities of any series.
Section 8.02. Supplemental Indentures with Consent of Holders. With
the written consent of the Holders of a majority of the aggregate principal
amount of the Outstanding Securities of each series adversely affected by such
supplemental indenture (with the Securities of each series voting as a class),
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto to add any provisions to or
to change or eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the Holders of such
Securities; PROVIDED, HOWEVER, that without the consent of the Holder of each
Outstanding Security affected thereby, a supplemental indenture under this
Section may not:
(1) change the Stated Maturity of the principal of, or premium,
if any, on, or any installment of principal of or premium, if any, or
interest on, or any Additional Amounts on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption, repurchase or repayment thereof, or change the
manner in which the amount of any principal thereof or premium, if any, or
interest or Additional Amounts thereon is determined or reduce the amount
of the principal of any Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02, or change the Place of
Payment where or the currency in which any Securities or any premium or the
interest or Additional Amounts 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);
(2) reduce the percentage in principal amount of the Outstanding
Securities affected thereby, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.02; or
(4) make any change in Section 5.07 or this 8.02 except to
increase any percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived with the consent of the Holders of
each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.02 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more series shall be set forth in
a supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.04. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 8.05. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
Section 8.06. Reference in Securities to Supplemental Indentures.
Securities, including any coupons, of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities including any coupons of any series
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.
ARTICLE IX
Covenants
Section 9.01. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each series
of Securities that it will duly and punctually pay the principal of, premium, if
any, and interest together with Additional Amounts, if any, on the Securities of
that series in accordance with the terms of the Securities of such series, any
coupons appertaining thereto and this Indenture. An installment of principal,
premium, if any, or interest, if any, of any Additional Amounts shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
Section 9.02. Maintenance of Office or Agency. If Securities of a
series are issued as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, (i) subject
to any laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States where
Securities of that series and related coupons may be presented and surrendered
for payment; PROVIDED, HOWEVER, that if the Securities of that series are listed
on The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (ii) subject to any laws or regulations applicable thereto, an
office or agency in a Place by Payment for that series which is located outside
the United States, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture maybe served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.01, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in United States, by transfer to an account located in the United States
or upon presentation or surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to an account located
outside the United States; PROVIDED, HOWEVER, that, if the Securities of a
series are denominated and payable in Dollars, payment of principal of and any
premium or interest on any such Bearer Security shall be made at the office of
the Company's Paying Agent located within the United States, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or an agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise specified as contemplated by Section 3.01, the Trustee
shall initially serve as Paying Agent.
If and so long as the Securities of any series (i) are denominated in
a currency other than Dollars or (ii) may be payable in currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities or as so required, an Exchange Rate Agent.
Section 9.03. Money for Securities Payments to be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest or any Additional Amount, on any
of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal, premium, if
any, or 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
in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest or Additional Amounts on Securities of that
series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making to any
payment of principal, premium, if any, or interest or Additional Amounts on
the Securities; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest or Additional Amount has become due and
payable shall be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, 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; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 9.04. Corporate Existence. Subject to Article VII, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; PROVIDED that nothing in this Section 9.04 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company and not prejudicial in any material respect to the
Holders of the Securities.
Section 9.05. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 9.05, as may be required by rules and
regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including information
concerning the Company's compliance with any of its covenants hereunder,
PROVIDED that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder.
Section 9.06. Annual Review Certificate; Notice of Defaults or Events
of Default. The Company covenants and agrees to deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date
hereof, a certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company, covering the preceding
calendar year, stating whether or not to the best knowledge of the signer(s)
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, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
For the purposes of this Section 9.06, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
Section 9.07. Books of Record and Account. The Company will keep
proper books of record and account, either on a consolidated or individual
basis. The Company shall cause its books of record and account to be examined
either on a consolidated or individual basis, by one or more firms of
independent public accountants not less frequently than annually. The Company
shall prepare its financial statements in accordance with GAAP.
ARTICLE X
Redemption
Section 10.01. Applicability of Article. Securities (including
coupons, if any) of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article.
Section 10.02. Election to Redeem Notice to Trustee. The election of
the Company to redeem any Securities, including coupons, if any, shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Securities or coupons, if any,
of any series, the Company shall, at least 60 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 Redemption Price, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 10.03. Selection of Securities to be Redeemed. Unless
otherwise specified as contemplated by Section 3.01, if less than all the
Securities (including coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the redemption date, shall
select the Securities of the series to be redeemed in such manner 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 of such series,
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. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including coupons, if any, of that series or any integral multiple
thereof) of the principal amount of Securities, including coupons, if any, of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. The Trustee shall promptly notify the Company in
writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption. If less than all the
Securities of any series with differing issue dates, interest rates and stated
maturities are to be redeemed, the Company in its sole discretion shall select
the particular Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.04. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.01, notice of redemption shall be given in the manner
provided in Section 1.06 not less than 30 days nor more than 60 days prior to
the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be
redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to surrendered for
payment for the Redemption Price;
(6) that Securities of the series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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.
Section 10.05. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
XI, segregate and hold in trust as provided in Section 9.03) an amount of money
in the currency or currencies (including currency unit or units) in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, 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 and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest (and any
Additional Amounts) to the Redemption Date; PROVIDED, HOWEVER, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and its possessions (except as otherwise provided in Section 9.02)
and, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender to coupons for such interest; and PROVIDED, FURTHER
that, unless otherwise specified as contemplated by Section 3.01, installments
of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
PROVIDED, HOWEVER, that interest (and any Additional Amounts) represented by
coupons shall be payable only at an office or agency located outside of the
United States (except as otherwise specified pursuant to Section 9.02) and,
unless otherwise provided as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.07. Securities Redeemed in Part. Upon surrender of a
Registered Security that is redeemed in part at any Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge a new Registered
Security or Securities of the same series, having the same form, terms and
Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE XI
Sinking Funds
Section 11.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 11.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.03. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied be delivering and crediting Securities of that series pursuant to
Section 11.02 and will also deliver to the Trustee any Securities to be so
delivered to the extent it has not previously done so. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 10.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.06 and 10.07.<PAGE>
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one 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.
/s/ Roger K. Brooks
By: -----------------------------
Name: Roger K. Brooks
Title: President, Chairman and
Chief Executive Officer
{Seal}
Attest:
/s/ James A. Smallenberger
By: --------------------------------
Name: James A. Smallenberger
Title: Senior Vice President
and Secretary
FIRST UNION NATIONAL BANK
/s/ Shawn K. Bednasek
By: -------------------------------
Name: Shawn K. Bednasek
Title: Vice President
{Seal}
Attest:
/s/ Shannon Schwartz
By: ---------------------------
Name: Shannon Schwartz
Title: Assistant Vice President
Exhibit 4.15
==============================================================================
INDENTURE
between
AMERUS LIFE HOLDINGS, INC.
and
FIRST UNION NATIONAL BANK
as Trustee
Dated as of July 27, 1998
Providing for the Issuance of
Subordinated Debt Securities in Series
=============================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisionsof General Application
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.02. Compliance Certificate and Opinions . . . . . . . . . . . . . . 13
Section 1.03. Forms of Documents Delivered to Trustee . . . . . . . . . . . . 13
Section 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1.05. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . 17
Section 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . 17
Section 1.07. Headings and Table of Contents. . . . . . . . . . . . . . . . . 19
Section 1.08. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . 19
Section 1.09. Separability. . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . 19
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1.12. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE II
Security Forms
Section 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.02. Form of Trustee's Certificate of
Authentication. . . . . . 21
Section 2.03. Securities in Global Form . . . . . . . . . . . . . . . . . . . 21
Section 2.04. Form of Legend for Securities in Global
Form. . . . . . 22
ARTICLE IIIThe Securities
Section 3.01. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . 23
Section 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.03. Execution, Authentication, Delivery and Dating. . . . . 28
Section 3.04. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . 31
Section 3.05. Registration, Transfer and Exchange . . . . . . . . . . . . . . 32
Section 3.06. Replacement Securities. . . . . . . . . . . . . . . . . . . . . 37
Section 3.07. Payment of Interest; Interest Rights Preserved. . . . . . 39
Section 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . 41
Section 3.09. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . 42
Section 3.11. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.12. Currency and Manner of Payment in Respect of Securities. 43
Section 3.13. Appointment and Resignation of Exchange Rate Agent . . . 48
ARTICLE IV
Satisfaction, Discharge and Defeasance
Section 4.01. Termination of Company's Obligations
Under the Indenture. 49
Section 4.02. Application of Trust Funds. . . . . . . . . . . . . . . . . . . 51
Section 4.03. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance
or Covenant Defeasance51
Section 4.04. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . . 51
Section 4.05. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . 52
Section 4.06. Conditions to Defeasance or Covenant
Defeasance . . . . . 53
Section 4.07. Deposited Money and Government
Obligations to Be Held in Trust55
Section 4.08. Repayment to Company. . . . . . . . . . . . . . . . . . . . . . 56
Section 4.09. Indemnity for Government Obligations. . . . . . . . . . . . . . 56
Section 4.10. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE V
Defaults and Remedies
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . 57
Section 5.02. Acceleration; Rescission and Annulment. . . . . . . . . . . . . 60
Section 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee61
Section 5.04. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . 62
Section 5.05. Trustee May Enforce Claims Without
Possession of Securities62
Section 5.06. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . . 63
Section 5.07. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . 63
Section 5.08. Control by Majority . . . . . . . . . . . . . . . . . . . . . . 63
Section 5.09. Limitation on Suits by Holders. . . . . . . . . . . . . . . . . 64
Section 5.10. Rights of Holders to Receive Payment. . . . . . . . . . . . . . 65
Section 5.11. Application of Money Collected. . . . . . . . . . . . . . . . . 65
Section 5.12. Restoration of Rights and Remedies. . . . . . . . . . . . . . . 66
Section 5.13. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . 66
Section 5.14. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . 66
Section 5.15. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . 66
Section 5.16. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE VI
The Trustee
Section 6.01. Certain Duties and Responsibilities
of the Trustee . . . 68
Section 6.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.03. Trustee May Hold Securities . . . . . . . . . . . . . . . . . . 69
Section 6.04. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . 69
Section 6.05. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . 70
Section 6.06. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . 70
Section 6.07. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . 70
Section 6.08. Securityholder Lists. . . . . . . . . . . . . . . . . . . . . . 70
Section 6.09. Compensation and Indemnity. . . . . . . . . . . . . . . . . . . 71
Section 6.10. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . 72
Section 6.11. Acceptance of Appointment by Successor. . . . . . . . . . . . . 74
Section 6.12. Eligibility; Disqualification . . . . . . . . . . . . . . . . . 75
Section 6.13. Merger, Conversion, Consolidation or
Succession to Business76
Section 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . 76
ARTICLE VII
Consolidation, Merger or Sale by the Company
Section 7.01. Consolidation, Merger or Sale of Assets
Permitted . . . 78
ARTICLE VIII
Supplemental Indentures
Section 8.01. Supplemental Indentures Without Consent
of Holders. . . 79
Section 8.02. Supplemental Indentures with Consent of Holders . . . . 81
Section 8.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . 82
Section 8.04. Execution of Supplemental Indentures. . . . . . . . . . . . . . 83
Section 8.05. Effect of Supplemental Indentures . . . . . . . . . . . . . . . 83
Section 8.06. Reference in Securities to Supplemental Indentures. . . 83
Section 8.07. Effect on Senior Indebtedness . . . . . . . . . . . . . . . . . 83
ARTICLE IX
Covenants
Section 9.01. Payment of Principal, Premium, if any, and Interest. . 83
Section 9.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . 84
Section 9.03. Money for Securities Payments to be
Held in Trust; Unclaimed Money85
Section 9.04. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . 87
Section 9.05. Reports by the Company. . . . . . . . . . . . . . . . . . . . . 87
Section 9.06. Annual Review Certificate; Notice of
Defaults or Events of Default88
Section 9.07. Books of Record and Account . . . . . . . . . . . . . . . . . . 88
ARTICLE X
Redemption
Section 10.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 89
Section 10.02. Election to Redeem Notice to Trustee . . . . . . . . . . . . . 89
Section 10.03. Selection of Securities to be Redeemed . . . . . . . . . . . . 89
Section 10.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 90
Section 10.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . 91
Section 10.06. Securities Payable on Redemption Date. . . . . . . . . . . . . 92
Section 10.07. Securities Redeemed in Part. . . . . . . . . . . . . . . . . . 93
ARTICLE XI
Sinking Funds
Section 11.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 93
Section 11.02. Satisfaction of Sinking Fund Payments
with Securities94
Section 11.03. Redemption of Securities for
Sinking Fund . . . . 94
ARTICLE XII
Subordination of Securities
Section 12.01. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . 95
Section 12.02. Distribution on Dissolution, Liquidation
and Reorganization95
Section 12.03. Prior Payment to Senior Indebtedness
Upon Acceleration of Securities97
Section 12.04. No Payment on Securities in Event of
Default on Senior Indebtedness98
Section 12.05. Payments on Securities Permitted . . . . . . . . . . . . . . . 99
Section 12.06. Subrogation to Rights of Holders of
Senior Indebtedness99
Section 12.07. Provisions Solely to Define Relative
Rights. . . . .100
Section 12.08. Authorization of Holders of Securities
to Trustee to Effect Subordination100
Section 12.09. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . .100
Section 12.10. Trustee as Holder of Senior
Indebtedness . . . .101
Section 12.11. No Waiver of Subordination Provisions. . . . . . . . . . . . .102
Section 12.12. Reliance on Judicial Order or
Certificate of Liquidating Agent102
Section 12.13. Trustee Not Fiduciary for Holders of
Senior Indebtedness103
Section 12.14. Article Applicable to Paying Agents. . . . . . . . . . . . . .103
Section 12.15. Certain Conversions or Exchanges
Deemed Payment.103
<PAGE>
INDENTURE, dated as of July 27, 1998 from AMERUS LIFE HOLDINGS, INC.,
an Iowa corporation (the "Company"), to FIRST UNION NATIONAL BANK (the
"Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
subordinated debentures, notes or other evidences of subordinated indebtedness
("Securities") to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.01. Definitions. (a) 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 GAAP (as hereinafter defined);
and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"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 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued hereunder which is payable
to bearer.
"Board" or "Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the Board of Directors of the
Company.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of the certificate, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"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 Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the party named as the Company in the first paragraph
of this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter means such
successor.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by two Officers, one of whom
must be the Chairman of the Board, the President, the Chief Financial Officer,
the Treasurer, the Assistant Treasurer, the Controller or a Vice President of
the Company.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the issuer of such currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Communities or (iii) any currency unit other than the ECU
for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee in which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 230 South Tryon
Street, 9th Floor, Charlotte, North Carolina 28288-1179, Attention: Corporate
Trust Dept.
"Currency Unit" or "currency unit" for all purposes of this Indenture
shall mean any composite currency.
"Debt" means indebtedness for money borrowed.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default.
"Depository" when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depository by the Company pursuant to Section 3.01 until a
successor Depository shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depository hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" means the currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Exchange Rate Agent", when used with respect to Securities of or
within any series, means, unless otherwise specified with respect to any
Securities pursuant to Section 3.01, a bank designated pursuant to Section 3.01
or Section 3.13 (which may include any such bank acting as Trustee hereunder).
"Exchange Rate Officer's Certificate" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount in the relevant currency or
currency unit), payable with respect to a Security of any series on the basis of
such Market Exchange Rate or the applicable bid quotation, signed by the Chief
Financial Officer, the Treasurer, the Controller, any Vice President or the
Assistant Treasurer of the Company.
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States or by any recognized
confederation or association of such governments.
"GAAP" means United States generally accepted accounting principles,
in effect as of the date of this Indenture, as set forth in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession.
"Government Obligations" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.01, the government which issued the currency in which the Securities of a
particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.01, such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States or such other government, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation evidenced by such depository
receipt.
"Holder" means, with respect to a Bearer Security, a bearer thereof or
of a coupon appertaining thereto and, with respect to a Registered Security, a
person in whose name a Security is registered on the Register.
"Indenture" means this Indenture as originally executed or as amended
or supplemented from time to time and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.01, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.01 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in New York City, London or any other principal market
for Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, in the event of the unavailability of any of the
exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the
Exchange Rate Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in New York
City, London or other principal market for such currency or currency unit in
question (which may include any such bank acting as Trustee under this
Indenture), or such other quotations as the Exchange Rate Agent shall deem
appropriate. If there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the market
to be used in respect of such currency or currency unit shall be that upon which
a nonresident issuer of securities designated in such currency or currency unit
would purchase such currency or currency unit in order to make payments in
respect of such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of the Company.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by two Officers, one of whom must be the Chairman of the
Board, the President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or a Vice President of the Company.
"Opinion of Counsel" means a written opinion from the general counsel
of the Company or other legal counsel who is reasonably acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.02.
"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, or portions thereof, for whose payment or redemption
money in the necessary amount and in the required currency or Currency Unit
has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities, except to the extent provided in Sections 4.04, with
respect to which the Company has effected defeasance as provided in Article
IV; and
(iv) Securities which have been paid pursuant to Section 3.06 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 which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (W) the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation and
that shall be deemed to be outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such Determination, upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.02, (X) the principal
amount of any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the
date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer's Certificate delivered to the Trustee, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (W) above) of such Security, (Y) the principal amount of any
Indexed Security that may be counted in making such determination or calculation
and that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such security pursuant to Section 3.01, and
(Z) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee actually 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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest and any other payments on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest or formula for determining the rate or
rates of interest thereon, if any, the Maturity thereof and the redemption
provisions, if any, with respect thereto, are to the determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of, premium, if
any, and interest and any other payments on such Securities are payable as
specified as contemplated by Sections 3.01.
"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 3.06 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.
"Principal Amount", when used with respect to any Security, means the
amount of principal, if any, payable in respect thereof at Maturity; PROVIDED,
HOWEVER, that when used with respect to an Indexed Security in any context other
than the making of payments at Maturity, "principal amount" means the principal
face amount of such Indexed Security at original issuance.
"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, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee, shall
mean the chairman or any vice chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any senior vice president, any
vice president, any assistant vice president, the secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer, the controller, any assistant controller, or any
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his knowledge of
and familiarity with a particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means a Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Senior Indebtedness" means the principal of, premium, if any, and
unpaid interest on (i) all indebtedness of the Company, whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, which is
for money borrowed, or which is evidenced by a note or similar instrument given
in connection with the acquisition of any business, properties or assets,
including securities; (ii) any indebtedness of others of the kinds described in
the preceding clause (i) the payment of which the Company is responsible for or
liable as guarantor or otherwise; and (iii) amendments, renewals, extensions and
refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, it is provided that such indebtedness is not senior in right of
payment to, or that such indebtedness is pari passu in right of payment with or
junior to, the Securities.
Senior Indebtedness does not include (a) any indebtedness of the
Company to any of its Subsidiaries, (b) liabilities of the Company incurred in
the ordinary course of its business, or (c) any indebtedness which by its terms
is expressly made pari passu in right of payment with or subordinated to the
8.85% Junior Subordinated Debentures, Series A of AmerUs Capital I, a trust
formed under the laws of the State of Delaware, or the Company's guarantee
thereof.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
on such Security or on a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) a corporation more
than 50% of the combined voting power of the outstanding Voting Stock of which
is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof, (ii) any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof, or
(iii) any other Person which is otherwise controlled by such Person or by one or
more other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries of such Person.
"Total Assets" means, at any date, the total assets appearing on the
most recently prepared consolidated balance sheet of the Company and its
consolidated Subsidiaries as of the end of a fiscal quarter of the Company,
prepared in accordance with GAAP.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.03.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Trustee and
if, at any time, there is more than one Trustee, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.01, the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.01, a citizen, national or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust, the income of which is subject to
United States federal income taxation regardless of its source.
"Voting Stock" of any Person means capital stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
TERM Section
"Act" 1.04(a)
"Additional Amount" 3.01(17)
"Bankruptcy Law" 5.01
"Component Currency" 3.12(h)
"Conversion Date" 3.12(d)
"Custodian" 5.01
"Defaulted Interest" 3.07(b)
"Election Date" 3.12(h)
"Event of Default" 5.01
"Judgment Date" 5.16
"Notice of Default" 5.01(3)
"Register" 3.05
"Registrar" 3.05
"Substitute Date" 5.16
"Valuation Date" 3.12(c)
Section 1.02. Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take an action under any
provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, 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 with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Sections 2.03 and 9.06) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Forms 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 as to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such Officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by 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 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 conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by any trust
company, bank, banker or other depository, wherever situated if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depository, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (i) another such certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner which the Trustee deems sufficient; and
the Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(d) The ownership of Registered Securities shall be proved by the
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) If the Company shall solicit from the Holders of any series any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders of such series entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so, provided that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of any series entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Section 5.02, (iii) any direction referred to in Section 5.08 or (iv) any
request to institute proceedings referred to in Section 5.09(2), and (v) any
waiver of past defaults pursuant to Section 5.07, in each case with respect to
Securities of such series. If such a record date is fixed pursuant to this
paragraph, the relevant action may be taken or given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be holders of a series for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities of such
series have authorized or agreed or consented to such action, and for that
purpose the Outstanding Securities of such series shall be computed as of such
record date; PROVIDED that no such action by Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date. 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 canceled 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 of the relevant series 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 and the proposed
action by Holders to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
Section 1.05. Notices, Etc., to Trustee and 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,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) in
writing and mailed, first-class postage prepaid, to the Trustee at its
Corporate Trust Office at 230 South Tryon Street, 9th Floor, Charlotte,
North Carolina 28288-1179, Attention: Corporate Trust Department, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at AmerUs Life Holdings, Inc., 699 Walnut Street, Des Moines, Iowa
50309, Attention: General Counsel or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of an event (i) if any of the Securities affected
by such event are Registered Securities, such notice to the Holders thereof
shall be sufficiently given unless otherwise herein expressly provided) if in
writing and mailed first-class postage prepaid to each such Holder affected by
such event, at his address as it appears in the Register within the time
prescribed for the giving of such notice and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated by Section 3.01.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders of
Bearer Securities by publication, neither the failure to publish such notice,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice with respect to any Holders of Registered Securities given as
provided herein. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder with respect to
a Holder of Registered Securities. If it is impossible or, in the opinion of
the Trustee, impracticable to give any notice by publication in the manner
herein required, then such publication in lieu thereof as shall be made with the
approval of the Trustee shall constitute a sufficient publication of such notice
with respect to a Holder of Bearer Securities.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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 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.
Section 1.07. Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.08. Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
Section 1.09. Separability. In case any provision of this Indenture
or 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 1.10. Benefits of Indenture. Nothing in this Indenture or in
the Securities, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. This Indenture, the Securities and any
coupons appertaining thereto shall be governed by and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of laws. This Indenture is subject to the Trust Indenture Act and if any
provision hereof limits, qualifies or conflicts with any provision of the Trust
Indenture Act, which 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 which
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. Whether or
not this Indenture is required to be qualified under the Trust Indenture Act,
the provisions of the Trust Indenture Act required to be included in an
indenture in order for such indenture to be so qualified shall be deemed to be
included in this Indenture with the same effect as if such provisions were set
forth herein and any provisions hereof which may not be included in an indenture
which is so qualified shall be deemed to be deleted or modified to the extent
such provisions would be required to be deleted or modified in an indenture so
qualified.
Section 1.12. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity of
any Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security or
coupon other than a provision in the Securities of an series which specifically
states that such provision shall apply in lieu of this Section) payment of
principal, premium, if any, or interest need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such date;
provided that to the extent such payment is made on such next succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.01. Forms Generally. The Securities of each series and the
coupons, if any, to be attached thereto shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depository
therefor or as may, consistently herewith, be determined by the officers
executing such Securities and coupons, if any, as evidenced by their execution
of the Securities and coupons, if any. If temporary Securities of any series
are issued as permitted by Section 3.04, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and coupons, if any, of any series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with an
appropriate record of any such action taken pursuant thereto, including a copy
of the approved form of Securities or coupons, if any, shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
for the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved boarders or may be produced in any
other manner, all as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Securities and coupons,
if any.
Section 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
--------------------------,
as Trustee
By: --------------------------
Authorized Signatory
Section 2.03. Securities in Global Form. If Securities of or within
a series are issuable in whole or in part in global form, any such Security of
such series may provide that it shall represent the aggregate or specified
amount of Outstanding Securities of such series from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be reduced or increased
to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 3.03 or 3.04.
Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Company Order. Any instructions by the Company with respect
to endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 1.02 hereof and need not be
accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.03 shall apply to
any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.02 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last paragraph of Section 3.03.
Notwithstanding the provisions of Section 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Section 2.04. Form of Legend for Securities in Global Form. Any
Registered Security in global form authenticated and delivered hereunder shall
bear a legend in substantially the following form with such changes as may be
required by the Depository:
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
ARTICLE III
The Securities
Section 3.01. Amount Unlimited; Issuable in Series. (a) The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued from
time to time in one or more series.
(b) The following matters shall be established with respect to each
series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.03) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
securities of the series pursuant to Section 3.04, 3.05, 3.06, 8.06, or
10.07);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and, with respect
to Registered Securities, the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date;
(5) the place or places where the principal of, premium, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the right, if any, of the Company to defer payment of interest on
the Securities, as the maximum length of any such deferral period and any
related terms, conditions or covenants;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units) in which, and
the other terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than as provided in Section 10.03, the manner in which the particular
Securities of such series (if less than all Securities of such series are
to be redeemed) are to be selected for redemption;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the other terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, if Registered Securities, and if other than the denomination of
$5,000 and any integral multiple thereof, if Bearer Securities, the
denominations in which Securities of the series shall be issuable;
(10) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of, premium, if any, and
interest, if any, on the Securities of the series shall be payable, or in
which the Securities of the series shall be denominated, and the particular
provisions applicable thereto in accordance with, in addition to, or in
lieu of the provisions of Section 3.12;
(11) if the payments of principal of, premium, if any, or interest, if
any, on the Securities of the series are to be made, at the election of the
Company or a Holder, in a currency or currencies (including currency unit
or units) other than that in which such Securities are denominated or
designated to be payable, the currency or currencies (including currency
unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto in accordance with, in addition to, or in lieu of the
provisions of Section 3.12;
(12) if the amount of payments of principal of, premium, if any, and
interest, if any, on the Securities of the series shall be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities
of the series are denominated or designated to be payable), the index,
formula or other method by which such amounts shall be determined;
(13) if other than the principal amount thereof, the portion of the
principal amount of such Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 5.02 or the
method by which such portion shall be determined;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if other than as provided in Section 3.07, the Person to whom any
interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer
Securities of the series shall be payable;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.01 or covenants of the Company set forth
in Article IX pertaining to the Securities of the series;
(18) under what circumstances, if any, the Company will pay additional
amounts on the Securities of that series held by a Person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted
("Additional Amounts") and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts (and the
terms of any such option);
(19) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without interest coupons), or
both, and any restrictions applicable to the offering, sale or delivery of
Bearer Securities and, if other than as provided in Section 3.05, the terms
upon which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
(20) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(21) the forms of the Securities and coupons, if any, of the series;
(22) the applicability, if any, to the Securities of or within the
series of Sections 4.04 and 4.05, or such other means of defeasance or
covenant defeasance as may be specified for the Securities and coupons, if
any, of such series, and, if the Securities are payable in a currency other
than Dollars, whether, for the purpose of such defeasance or covenant
defeasance the term "Government Obligations" shall include obligations
referred to in the definition of such term which are not obligations of the
United States or an agency or instrumentality of the United States;
(23) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(24) the designation of the initial Exchange Rate Agent, if any;
(25) if the Securities of the series shall be issued in whole or in
part in global form (i) the Depository for such global Securities, (ii) the
form of any legend in addition to or in lieu of that in Section 2.04 which
shall be borne by such global Security, (iii) whether beneficial owners of
interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of
any authorized form and nomination, and (iv) if other than as provided in
Section 3.05, the circumstances under which any such exchange may occur;
(26) any addition to, deletion from or change in Article XII with
respect to Securities of the Series; and
(27) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable (as determined by the Company) in connection with
the marketing of Securities of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.03) set forth or
determined in the manner provided, in the related Officers' Certificate or (iii)
in an indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Corporate Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof.
(e) The Securities shall be subordinated and subject in right of
payment to Senior Indebtedness as provided in Article XII.
Section 3.02. Denominations. Unless otherwise provided as
contemplated by Section 3.01, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000
and any integral multiples thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by two Officers. The
Company's seal shall be reproduced on the Securities. The signatures of any of
these officers on the Securities may be manual or facsimile. The coupons, if
any, of Bearer Securities shall bear the facsimile signature of two Officers.
Securities and coupons 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, the Company may deliver Securities,
together with any coupons appertaining thereto, of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities; PROVIDED,
HOWEVER, that in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time to time in
accordance with such other procedures (including without limitation, the receipt
by the Trustee of oral or electronic instructions from the Company or its duly
authorized agents, promptly confirmed in writing) acceptable to the Trustee as
may be specified by or pursuant to a Company Order delivered to the Trustee
prior to the time of the first authentication of Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.0l, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 315(a) through
(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating,
(1) if the forms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
2.01, that such forms have been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities and any coupons have been
established by or pursuant to a Board Resolution as permitted by Section
3.01, that such terms have been, or in the case of Securities of a series
offered in a Periodic Offering, will be, established in conformity with the
provisions of this Indenture, subject in the case of Securities offered in
a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities together with any coupons appertaining
thereto, when authenticated and delivered by the trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles and
except further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Securities denominated other than in
Dollars (or a Foreign Currency or currency unit judgment in respect of such
claim) be converted into Dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
Notwithstanding that such form or terms have been so established, the
Trustee shall have the right to decline to authenticate such Securities if, in
the written opinion of counsel to the Trustee (which counsel may be an employee
of the Trustee) reasonably acceptable to the Company, the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee. Notwithstanding the generality of
the foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.01 and of the two
preceding paragraphs, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication of each Security of such series if such
documents, with appropriate modifications to cover such future issuances, are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 2.01 and 3.01 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in global form, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Securities of such series in global form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered, if a Registered Security,
in the name of the Depository for such Security or Securities in global form or
the nominee of such Depository, (iii) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instruction and (iv) shall bear the
legends set forth in Section 2.04 and the terms of the Board Resolution or
supplemental indenture relating to such series.
Each Depository designated pursuant to Section 3.01 for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depository is so registered. Each Depository shall enter into an agreement with
the Trustee and the Company governing the respective duties and rights of such
Depository, the Company and the Trustee with regard to Securities issued in
global form.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 3.01.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
the certificate of authentication substantially in the form provided herein is
executed by the manual signature of one of the authorized signatories of the
Trustee or an Authenticating Agent and no coupon shall be valid until the
Security to which it appertains has been so authenticated. Such signature upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by Section 3.06
or 3.07, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
Section 3.04. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and, upon Company
Order, the Trustee shall authenticate and deliver temporary Securities of such
series which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor and form,
with or without coupons, 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
conclusively evidenced by their execution of such Securities and coupons, if
any. In the case of Securities of any series, such temporary Securities may be
in global form, representing all or a portion of the Outstanding Securities of
such series.
Except in the case of temporary Securities in global form, each of
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company pursuant to Section 9.02 in a Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor; PROVIDED, HOWEVER, that no definitive Bearer Security, except as may be
provided pursuant to Section 3.01, shall be delivered in exchange for a
temporary Registered Security; and provided further that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
or pursuant to the Board Resolutions relating thereto and such delivery shall
occur only outside the United States. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series except as otherwise
specified as contemplated by Section 3.01.
Section 3.05. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency to be maintained by the Company in accordance with Section 9.02
in a Place of Payment a register (the "Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency maintained pursuant to Section 9.02 in a
Place of Payment for that series, the Company shall execute and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions.
Bearer Securities or any coupons appertaining thereto shall be
transferable by delivery.
At the option of the Holder, Registered Securities of any series
(except a Registered Security in global form) may be exchanged for other
Registered Securities of the same series, of any authorized denominations and of
a like aggregate principal amount containing identical terms and provisions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified as contemplated by Section 3.01, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.01, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee in an amount equal to the face amount of such missing coupon or coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 9.02, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any
series is surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related date
for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon,
when due in accordance with the provisions of this Indenture.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depository designated for such series or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depository for such series to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any such nominee to a successor Depository
for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depository for the
Securities of such series or defaults in the performance of its duties as
Depository or if at any time the Depository for the Securities of such series
shall no longer be eligible under Section 3.03, the Company shall appoint a
successor Depository with respect to the Securities of such series. If a
successor Depository for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company selection pursuant to Section 3.01(b)(24)
shall no longer be effective with respect to the Securities of such series and
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of certificated Securities of such series of
like tenor, shall authenticate and deliver Securities of such series of like
tenor in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or Securities of
such series of like tenor in global form in exchange for such Security or
Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depository for such series may surrender a Security in
global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new certificated
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Security in global form; and
(ii) to such Depository a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company
shall 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 upon any
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 Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 8.06 or 10.07 not involving any
transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (i) to issue,
register the transfer of, or exchange any Securities of that series for a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption under
Section 10.03 and ending at the close of business on the day of such mailing;
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption, in whole or in part, except the unredeemed portion of any
Security being redeemed in part; or (iii) to exchange any Bearer Security so
selected for redemption, except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor; PROVIDED that such
Registered Security shall be simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.06. Replacement Securities. If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, 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 a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Bearer Security with coupons corresponding to the
coupons appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the Trustee's
requirements are met, containing identical terms and of like tenor and of like
principal amount.
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
or coupon 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 or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen),
a replacement Registered Security, if such Holder's Claim appertains to a
Registered Security, or a replacement Bearer Security with coupons corresponding
to the coupons appertaining to the destroyed, lost or stolen Bearer Security or
the Bearer Security to which such lost, destroyed or stolen coupon appertains,
if such Holder's claim appertains to a Bearer Security, of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding with coupons corresponding to the coupons, if
any, appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; PROVIDED, HOWEVER, that payment of principal of and any premium or
interest on Bearer Securities shall, except as otherwise provided in Section
9.02, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.01, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require that 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, its agents and
counsel) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, 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 or coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved. (a)
Unless otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities, interest, if any, on any Registered 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.
Unless otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, (i) interest, if any, on Bearer Securities shall be
paid only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original issue
discount, if any, on Bearer Securities shall be paid only against presentation
and surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing, provided that any such instruction for
payment in the United States does not cause any Bearer Security to be treated as
a "registration-required obligation" under United States laws and regulations.
The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Securities, any interest on Registered Securities of
any series which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date for such Registered Securities (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holders on the
relevant Regular Record Date by virtue of their having been such Holders, 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 such Defaulted
Interest to the Persons in whose names such Registered 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 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 (1) 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 of such Registered
Securities at his address as it appears in the 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 such Registered 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). In case a Bearer Security of
any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment in respect of the Registered Security issued
in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of such Defaulted Interest to
the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (2), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.05, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.08. Persons Deemed Owners. Prior to due presentment of any
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Sections 3.05 and 3.07) interest on and Additional Amounts with respect to
such Registered Security and for all other purposes whatsoever, whether or not
such Registered 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon 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.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee) as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.09. Cancellation. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not be required to, dispose of canceled
Securities and coupons and issue a certificate of destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except as otherwise specified
as contemplated by Section 3.01, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, in such case, 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.
Section 3.12. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal of, premium, if any, and interest, if any,
on any Registered or Bearer Security of such series will be made in the currency
or currencies or currency unit or units in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section
3.12 may be modified or superseded pursuant to Section 3.01 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.01, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with signature guarantees and in the applicable form established pursuant to
Section 3.01, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder or any transferee of such Holder until changed
by such Holder or such transferee by written notice to the Trustee (or any
applicable Paying Agent) for such series of Registered Securities (but any such
change must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date, and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article IV or with respect to which a
notice of redemption has been given by or on behalf of the Company pursuant to
Article X). Any Holder of any such Registered Security who shall not have
delivered any such Election to the Trustee (or any applicable Paying Agent) not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant currency or
currency unit as provided in Section 3.12(a). The Trustee (or the applicable
Paying Agent) shall notify the Exchange Rate Agent as soon as practicable after
the Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) If the election referred to in paragraph (b) above has been
provided for with respect to any Registered Securities of a series pursuant to
Section 3.01, then, unless otherwise specified pursuant to Section 3.01 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as provided
in paragraph (b) above. If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a series pursuant
to Section 3.01, and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 3.01, on the second Business Day
immediately preceding such payment date the Company will deliver to the Trustee
(or the applicable Paying Agent) an Exchange Rate Officers' Certificate in
respect of the Dollar, Foreign Currency or Currencies, ECU or other currency
unit payments to be made on such payment date. Unless otherwise specified
pursuant to Section 3.01, the Dollar, Foreign Currency or Currencies, ECU or
other currency unit amount receivable by Holders of Registered Securities who
have elected payment in a currency or currency unit as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency,
ECU or any other currency unit in which any of the Securities are denominated or
payable otherwise than pursuant to an election provided for pursuant to
paragraph (b) above, then, with respect to each date for the payment of
principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
be the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.01, the Dollar
amount to be paid by the Company to the Trustee or any applicable Paying Agent
and by the Trustee or any applicable Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or in the case of a Foreign Currency that is a currency unit, the
Dollar Equivalent of the Currency limit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the Holder
of a Registered Security denominated in any currency or currency unit shall have
elected to be paid in another currency or currency unit or in other currencies
as provided in paragraph (b) above, and (i) a Conversion Event occurs with
respect to any such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs with
respect to the currency or currency unit in which payment would have been made
in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.12 (but, subject to any contravening
valid election pursuant to paragraph (b) above, the elected payment currency or
currency unit, in the case of the circumstances described in clause (i) above,
or the payment currency or currency unit in the absence of such election, in the
case of the circumstances described in clause (ii) above, shall, at the
Company's election, resume being the currency or currency unit of payment with
respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which
gave rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or currency
unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and, subject to the provisions of paragraph (h)
below, shall be the sum of each amount obtained by converting the specified
amount of each Component Currency (as each such term is defined in paragraph (h)
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant to
Section 3.01 by which the written election referred to in Section
3.12(b) may be made.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
such Component Currency represented in the relevant currency unit,
including, but not limited to, ECU, on the Conversion Date. If after
the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective
specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of
such replacement, shall be equal to the Specified Amount of such
former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, ECU, a Conversion Event (other
than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee (and any applicable Paying Agent) and all Holders of
Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee of the appropriate
series of Securities (or any applicable Paying Agent) and to the Exchange Rate
Agent (and the Trustee (or such Paying Agent) will promptly thereafter give
notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a
Conversion Event has occurred with respect to ECU or any other currency unit in
which Securities are denominated or payable, the Company will promptly give
written notice thereof to the Trustee (or any applicable Paying Agent) and to
the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the definition of Specified Amount above has occurred, the Company will
similarly give written notice to the Trustee (or any applicable Paying Agent)
and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.13. Appointment and Resignation of Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so long as the
Securities of any series (i) are denominated in a currency other than Dollars or
(ii) may be payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.12 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currencies or currency unit or units into the applicable
payment currency or currency unit for the payment of principal, premium, if any,
and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01 at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies or currency unit or units).
ARTICLE IV
Satisfaction, Discharge and Defeasance
Section 4.01. Termination of Company's Obligations Under the
Indenture. This Indenture shall upon a Company Request cease to be of further
effect with respect to Securities of or within any series and any coupons
appertaining thereto (except as to any surviving rights of registration of
transfer or exchange of such Securities and replacement of such Securities which
may have been lost, stolen or mutilated as herein expressly provided for) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture (including but not
limited to Article XII) with respect to such Securities and any coupons
appertaining thereto when (1) either
(A) all such Securities previously authenticated and delivered and all
coupons appertaining thereto (other than (i) such coupons appertaining to
Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has
been waived as provided in Section 3.05, (ii) such Securities and coupons
which have been destroyed, lost or stolen and which have been replaced or
paid, as provided in Section 3.06, (iii) such coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in Section
10.06 and (iv) such Securities and coupons 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 9.03) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, or (ii) will
become due and payable at their Stated Maturity within one year, or (iii)
if redeemable at the option of the Company, are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which the Securities of such series
are payable, sufficient to pay and discharge the entire indebtedness on
such Securities and such coupons not theretofore delivered to the Trustee
for cancellation, for principal, premium, if any, and interest, and any
Additional Amounts payable as specified pursuant to Section 3.01(b)(17)
with respect thereto, 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 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 as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee under
Section 6.09, the obligations of the Company to any Authenticating Agent under
Section 6.14 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 4.02 and the last paragraph of Section 9.03 shall survive.
Section 4.02. Application of Trust Funds. Subject to the provisions
of the last paragraph of Section 9.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal, premium, if any, and any interest for whose
payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
Section 4.03. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.01
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.04 or (ii) covenant defeasance of the Securities
of or within a series under Section 4.05, then the provisions of such Section or
Sections, as the case may be, together with the provisions of Sections 4.06
through 4.09 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.01 with respect to any Securities, shall be applicable to
such Securities and any coupons appertaining thereto, and the Company may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 4.04 (if
applicable) or Section 4.05 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 4.04. Defeasance and Discharge. Upon the Company's exercise
of the option specified in Section 4.03 applicable to this Section with respect
to the Securities of or within a series, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 4.06 are satisfied (hereinafter "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Securities and any coupons
appertaining thereto which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.07 and the other Sections of this Indenture
referred to in clause (ii) of this Section, and to have satisfied all its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall on a Company
Order execute proper instruments acknowledging the same), except the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of such Securities and any coupons appertaining thereto to
receive solely from the trust funds described in Section 4.06(a) and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest, if any, on such Securities or any coupons
appertaining thereto when such payments are due; (ii) the Company's obligations
with respect to such Securities under Sections 3.04, 3.05, 3.06, 9.02 and 9.03
and with respect to the payment of additional amounts, if any, payable with
respect to such Securities as specified pursuant to Section 3.01(b)(17); (iii)
the rights, powers trusts, duties and immunities of the Trustee hereunder and
(iv) this Article IV. Subject to compliance with this Article IV, the Company
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 4.05 with respect to such Securities and any coupons
appertaining thereto. Following a defeasance, payment of such Securities may
not be accelerated because of an Event of Default.
Section 4.05. Covenant Defeasance. Upon the Company's exercise of
the option specified in Section 4.03 applicable to this Section with respect to
any Securities of or within a series, the Company shall be released from its
obligations under Sections 7.01(3), 7.01(4) and 9.07 and, if specified pursuant
to Section 3.01, its obligations under any other covenant, with respect to such
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.06 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 7.01(3), 7.01(4)and 9.07 or such other
covenant but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Securities and any coupons appertaining thereto, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.01(3) or 5.01(7), or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
Section 4.06. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 4.04 or Section 4.05
to any Securities of or within a series and any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the
requirements of Section 6.12 who shall agree to comply with and shall be
entitled to the benefits of, the provisions of Sections 4.03 through 4.09
inclusive and the last paragraph of Section 9.03 applicable to the Trustee,
for purposes of such Sections also a "Trustee") as trust funds in trust for
the purpose of making the payments referred to in clauses (x) and (y) of
this Section 4.06(a), specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons
appertaining thereto, with instructions to the Trustee as to the
application thereof, (A) money in an amount (in such currency, currencies
or currency unit or units in which such Securities and any coupons
appertaining thereto are then specified as payable at Maturity), or (B) if
Securities of such series are not subject to repayment at the option of
Holders, Government Obligations which through the payment of interest,
principal, premium, if any, and any Additional Amounts in respect thereof
in accordance with their terms will provide not later than one day before
the due date of any payment referred to in clause (x) or (y) of this
Section 4.06(a), money in an amount or (C) a combination thereof in an
amount, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and discharge
(x) the principal of, premium, if any, and interest, if any, and any
Additional Amounts on such Securities and any coupons appertaining thereto
on the Maturity of such principal or installment of principal or interest
and (y) any mandatory sinking fund payments applicable to such Securities
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and such Securities and any coupons
appertaining thereto. Before such a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date or dates in accordance with Article X which shall be given
effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default or Event of Default under,
this Indenture or result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company is a
party or by which it is bound.
(c) In the case of an election under Section 4.04, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such
Securities and any coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred.
(d) In the case of an election under Section 4.05, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.04 or the covenant defeasance
under Section 4.05 (as the case may be) including those contained in this
Section 4.06 other than the 90 day period specified in Section 4.06(g),
have been complied with.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(g) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.01(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(h) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940 unless such trust shall
be registered under such Act or exempt from registration thereunder.
(i) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by Section 3.01.
(j) No event or condition shall exist that, pursuant to Article XII,
would prevent the Company from making payments of principal of, premium, if
any, interest, if any and any Additional Amounts on the Securities.
Section 4.07. Deposited Money and Government Obligations to Be Held
in Trust. Subject to the provisions of the last paragraph of Section 9.03, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.01) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.06 in respect of any Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto 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 Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, if any, and any Additional Amounts,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 3.01, if, after a deposit referred to in Section 4.06(a) has been made,
(i) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 4.06(a) has been made in respect of such
Security, or (ii) a Conversion Event occurs as contemplated in Section 3.12(d)
or 3.12(e) or by the terms of any Security in respect of indebtedness which the
deposit pursuant to Section 4.06(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of, premium, if any, and interest, if any, on such Security as the
same becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such currency or currency
unit in effect on the second Business Day prior to each payment date, except,
with respect to a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
Section 4.08. Repayment to Company. Subject to the last paragraph of
Section 9.03, the Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
Section 4.09. Indemnity for Government Obligations. The Company
shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this
Article or the principal and interest and any other amount received on such
Government Obligations.
Section 4.10. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money or Government Obligations, as the case may be, in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture, such Securities and any coupons appertaining thereto from which the
Company has been discharged or released pursuant to Section 4.04 or 4.05 shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money or Government Obligations, as the
case may be, held in trust pursuant to Section 4.07 with respect to such
Securities and any coupons appertaining thereto in accordance with this Article;
PROVIDED, HOWEVER, that if the Company makes any payment of principal of or any
premium or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities or coupons to receive such payment from the money or
Government Obligations, as the case may be, so held in trust.
ARTICLE V
Defaults and Remedies
Section 5.01. Events of Default. An "Event of Default" occurs with
respect to the Securities of any series if (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 payment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that series
as specified pursuant to Section 3.01(b)(17) when the same becomes due
and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or
any premium on any Security of that series when the same becomes due
and payable at its Maturity or on redemption or otherwise, or in the
payment of a mandatory sinking fund payment when and as due by the
terms of the Securities of that series;
(3) the Company fails to comply with any of its agreements or
covenants in, or any of the provisions of, this Indenture with respect
to any Security of that series (other than an agreement, covenant or
provision for which non-compliance is elsewhere in this Section
specifically dealt with), and such non-compliance continues for a
period of 60 days after there has been given by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of the series, a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder;
(4) a default under any mortgage, agreement, indenture or
instrument under which there may be issued, or by which there may be
secured, guaranteed or evidenced any Debt of the Company (including
this Indenture) whether such Debt now exists or shall hereafter be
created, in an aggregate principal amount then outstanding of
$25,000,000 or more, which default (a) shall constitute a failure to
pay any portion of the principal of such Debt when due and payable
after the expiration of an applicable grace period with respect
thereto or (b) shall result in such Debt becoming or being declared
due and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not be rescinded or
annulled, or such Debt shall not be paid in full within a period of 30
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series a written notice specifying such
event of default and requiring the Company to cause such acceleration
to be rescinded or annulled or to pay in full such Debt and stating
that such notice is a "Notice of Default" hereunder; (it being
understood however, that the Trustee shall not be deemed to have
knowledge of such default under such agreement or instrument unless
either (A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) a Responsible Officer of the Trustee
shall have received written notice thereof from the Company, from any
Holder, from the holder of any such indebtedness or from the trustee
under any such agreement or other instrument); PROVIDED, HOWEVER, that
if such default under such agreement or instrument is remedied or
cured by the Company or waived by the holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of such
Holders; PROVIDED, FURTHER, that the foregoing shall not apply to any
secured Debt under which the obligee has recourse (exclusive of
recourse for ancillary matters such as environmental indemnities,
misapplication of funds, costs of enforcement and the like) only to
the collateral pledged for repayment so long as the fair market value
of such collateral does not exceed 2% of Total Assets at the time of
the default;
(5) the Company, pursuant to or within the meaning of any
Bankruptcy Law, (A) commences a voluntary case or proceeding, (B)
consents to the entry of an order for relief against it in an
involuntary case or proceeding, (C) consents to the appointment of a
Custodian of it or for all or substantially all of its property, (D)
makes a general assignment for the benefit of its creditors, (E) makes
an admission in writing of its inability to pay its debts generally as
they become due or (F) takes corporate action in furtherance of any
such action;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that (A) is for relief against the Company,
in an involuntary case, (B) adjudges the Company as bankrupt or
insolvent, or approves as properly filed a petition seeking
reorganization, arrangement, and adjustment or composition of or in
respect of the Company, or appoints a Custodian of the Company, or for
all or substantially all of its property, or (C) orders the
liquidation of the Company and the decree remains unstayed and in
effect for 60 days; or
(7) any other Event of Default provided as contemplated by
Section 3.01 with respect to Securities of that series.
The Company shall deliver to the Trustee, within 90 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which is or with the giving of notice or the lapse of time would
become an event which is or with the giving of notice or the lapse of time would
become an Event of Default, its status and what action the Company is taking or
proposes to take with respect thereto.
As used in the Indenture, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar federal or state bankruptcy, insolvency,
reorganization or other law for the relief of debtors. As used in the
Indenture, the term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Section 5.02. Acceleration; Rescission and Annulment. If an Event of
Default with respect to the Securities of any series at the time Outstanding
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of all of the Outstanding Securities of that series
by written notice to the Company (and if given by the Holders, to the Trustee),
may declare the principal (or, if the Securities of that series are Original
Issue Discount Securities or Indexed Securities, such portion of the Original
principal amount as may be specified in the terms of that series) of and accrued
interest, if any, on all the Securities of that series to be due and payable and
upon any such declaration such principal (or, in the case of Original Issue
Discount Securities or Indexed Securities, such specified amount) and interest,
if any, shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgement or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to 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) in the currency or currency unit in which that series of
Securities is payable, all overdue interest on all Securities of that
series and any related coupons and any Additional Amounts,
(B) in the currency or currency unit in which that series of
Securities is payable, the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities and any Additional Amounts payable, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all existing Defaults and Events of Default with respect to
Securities of that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.07. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest or any Additional
Amounts becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, if any, the whole amount then due and
payable on such Securities and coupons for principal, premium, if any, and
interest and any Additional Amounts, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal,
premium, if any, and on any overdue interest and any Additional Amounts, at the
rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to secure any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents and take such actions
authorized under the Trust Indenture Act as may be necessary or advisable in
order to have the claims of the Trustee and the Holders of Securities allowed in
any judicial proceedings relating to the Company, its creditors or its property.
In particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute
the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.09.
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 of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon 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 5.05. 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, in its own name as an
express trust, without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto and any recovery of
judgment shall, after provision for the reasonable fees and expenses of the
Trustee and its counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect to which judgment was recovered.
Section 5.06. Delay or Omission Not Waiver. No delay or omission by
the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or
constitute a waiver of or acquiescence in any such Event of Default. Every
right and remedy given by this Article or by law to the Trustee or to the
Holders of Securities or coupons may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of Securities
or coupons, as the case may be.
Section 5.07. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of Outstanding Securities of any series by written
notice to the Trustee may waive on behalf of the Holders of all Securities of
such series and any related coupons a past Default or Event of Default with
respect to that series and its consequences except (i) a Default or Event of
Default in the payment of the principal of, premium, if any, or interest or any
Additional Amounts on any Security of such series or any coupon appertaining
thereto or (ii) in respect of a covenant or provision hereof which pursuant to
Section 8.02 cannot be amended or modified without the consent of the Holder of
each Outstanding Security of such series affected. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture.
Section 5.08. Control by Majority. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) 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 it with respect to
Securities of that series; PROVIDED, HOWEVER, that (i) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture (ii) the Trustee
may refuse to follow any direction that is unduly prejudicial to the rights of
the Holders of Securities of such series not consenting or of any other series
for which the Trustee is trustee, or that would in the good faith judgment of
the Trustee have a substantial likelihood of involving the Trustee in personal
liability and (iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction. Prior to the taking of
any action hereunder, the Trustee shall be entitled to reasonable
indemnification satisfactory to the Trustee against all losses and expenses
caused by taking or not taking such action. This paragraph shall be in lieu of
Section 316(a)(1)(A) of the Trust Indenture Act and such Section 316(a)(1)(A) is
hereby expressly excluded from this Indenture, as permitted By the Trust
Indenture Act.
Section 5.09. Limitation on Suits by Holders. No Holder of any
Security of any series or any coupons appertaining thereto shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) the Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of that series have made a 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 indemnity
satisfactory to the Trustee against any loss, liability or expense to
be, or which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice,
request and the offer of indemnity has failed to institute any such
proceedings; and
(5) during such 60 day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent with
such written request.
No one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 5.10. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security or
coupon to receive payment of principal of, premium, if any, and, subject to
Sections 3.05 and 3.07, interest on the Security and any Additional Amounts, on
or after the respective due dates expressed in the Security (or, in case of
redemption, on the redemption dates), and the right of any Holder of a coupon to
receive payment of interest due as provided in such coupon, or, subject to
Section 5.09, to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 5.11. Application of Money Collected. If the Trustee
collects any money pursuant to this Article, it shall pay out the money in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, and any Additional Amounts upon presentation of the Securities or
coupon or both and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 6.09;
SECOND: Subject to the provisions of Article XII, to Holders of
Securities and coupons in respect of which or for the benefit of which such
money has been collected for amounts due and unpaid on such Securities for
principal of, premium, if any, and interest or any Additional Amounts,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any,
and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.11. At least 15 days before such record
date, the Trustee shall mail to each Holder and the Company a notice that states
the record date, the payment date and the amount to be paid.
Section 5.12. Restoration of Rights and Remedies. If the Trustee or
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders of Securities and coupons
shall continue as though no such proceeding had been instituted.
Section 5.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or 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 existing right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.14. 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.
Section 5.15. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorney's fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant PROVIDED that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or by the Trustee.
Section 5.16. Judgment Currency. If, for the purpose of obtaining a
judgment in any court with respect to any obligation of the Company hereunder or
under any Security or any related coupon, it shall become necessary to convert
into any other currency or currency unit any amount in the currency or currency
unit due hereunder or under such Security or coupon, then such conversion shall
be made by the Exchange Rate Agent at the Market Exchange Rate as in effect on
the date of entry of the judgment (the "Judgment Date"). If pursuant to any
such judgment, conversion shall be made on a date (the "Substitute Date") other
than the Judgment Date and there shall occur a change between the Market
Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as
in effect on the Substitute Date, the Company agrees to pay such additional
amounts (if any) as may be necessary to ensure that the amount paid is equal to
the amount in such other currency or currency unit which, when converted at the
Market Exchange Rate as in effect on the Judgment Date, is the amount due
hereunder or under such Security or coupon. Any amount due from the Company,
under this Section 5.16 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security or coupon. In no event, however, shall
the Company be required to pay more in the currency or currency unit due
hereunder under such Security or coupon at the Market Exchange Rate as in effect
on the Judgment Date than the amount of currency or currency unit stated to be
due hereunder or under such Security or coupon so that in any event the
Company's obligations hereunder or under such Security or coupon will be
effectively maintained as obligations in such currency or currency unit, and the
Company shall be entitled to withhold (or be reimbursed for, as the case may be)
any excess of the amount actually realized upon any such conversion on the
Substitute Date over the amount due and payable on the Judgment Date.
ARTICLE VI
The Trustee
Section 6.01. Certain Duties and Responsibilities of the Trustee.
(a) The Trustee's duties and responsibilities under this Indenture shall be
governed by the Trust Indenture Act.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Section 6.02. Rights of Trustee. Subject to the provisions of the
Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper party or parties. The Trustee need
not investigate any fact or matter stated in the document.
(b) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.03 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(c) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and/or require an Officers' Certificate. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written or oral advice of counsel
reasonably acceptable to the Company and the Trustee (which advice, if oral,
counsel shall promptly confirm in writing to the Trustee), a certificate of an
Officer or Officers delivered pursuant to Section 1.02, an Officers' Certificate
or an Opinion of Counsel.
(d) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(e) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(f) The Trustee shall not be required 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 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.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may seem fit, and, if the Trustee shall determine to
make such further inquiry or investigation it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney.
(h) 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.
(i) 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 6.02.
Section 6.03. Trustee May Hold Securities. The Trustee, any Paying
Agent, any Registrar or any other agent of the Company, in its in individual or
any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company, an Affiliate or Subsidiary with the same rights
it would have if it were not Trustee, Paying Agent, Registrar or such other
agent.
Section 6.04. 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 upon in writing with
the Company.
Section 6.05. Trustee's Disclaimer. The recitals contained herein
and in the Securities, except the Trustee's certificate of authentication, shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or accuracy of this Indenture or the Securities or any coupon. The
Trustee shall not be accountable for the Company's use of the proceeds from the
Securities or for monies paid over to the Company pursuant to the Indenture.
Section 6.06. Notice of Defaults. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to a
Responsible Officer of the Trustee, the Trustee shall, within 90 days after it
occurs, transmit by mail to the Holders of Securities of such series, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of all Defaults known to it unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that except in the case of a Default in payment on
the Securities of any series, the Trustee may withhold the notice if and so long
as the board of directors, the executive committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is in
the interests of Holders of Securities of that series; and PROVIDED, FURTHER,
that in the case of any Default of the character specified in Section 5.01(3)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
Section 6.07. Reports by Trustee to Holders. Within 60 days after
each May 15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee shall transmit by
mail to all Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by and in
compliance with Section 313(a) of the Trust Indenture Act. A copy of each such
report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange, if any, upon which the Securities are listed,
with the Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange.
Section 6.08. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
semiannually on or before the last day of June and December in each year, and at
such other times as the Trustee may request in writing, a list, in such form and
as of such date as the Trustee may reasonably require containing all the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses of
Holders of Securities of each such series. If there are Bearer Securities of
any series Outstanding, even if the Trustee is the Registrar, the Company shall
furnish to the Trustee such a list containing such information with respect to
Holders of such Bearer Securities only.
Section 6.09. Compensation and Indemnity. (a) The Company shall pay
to the Trustee from time to time such reasonable compensation for its services
as the Company and the Trustee shall agree in writing from time to time. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture, except any such expense
as may be attributable to its negligence or bad faith. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee and any Predecessor
Trustee, for and hold it harmless against, any loss or liability damage, claim
or reasonable expense including taxes (other than taxes based upon or determined
or measured by the income of the Trustee) incurred by it arising out of or in
connection with its acceptance or administration of the trust or trusts
hereunder, including the reasonable 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 Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(c) The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, any interest and any Additional
Amounts, on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(5) or Section 5.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
Section 6.10. Replacement of Trustee. (a) The resignation or removal
of the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of any series by giving written notice thereof to the Company.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company and may appoint a successor
Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for any least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.12 of
this Indenture or Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a Security for at least six
months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes charge of
the Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act,
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
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
(e) If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation or removal, the Trustee resigning or
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of one or more
series, the Company, by or pursuant to Board Resolution, shall promptly appoint
a successor Trustee with respect to the Securities to that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
Section 6.11. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment.
Thereupon, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee, without further act, deed or conveyance,
shall become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein such successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
or the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by another such Trustee and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to the successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 1.06. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.12. Eligibility; Disqualification. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital
and surplus of at least $100,000,000. If such Trustee publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then, for the purposes of this Section, the combined capital and surplus of such
Trustee 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 heretofore specified
in this Article.
Section 6.13. 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 to the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue, exchange,
registration of 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. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which Instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant to
Section 3.01, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State 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 authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
----------------------------------
As Trustee
By: ----------------------------------
as Authenticating Agent
By: ----------------------------------
Authorized Signatory
ARTICLE VII
Consolidation, Merger or Sale by the Company
Section 7.01. Consolidation, Merger or Sale of Assets Permitted. The
Company shall not consolidate with or merge with or into, or transfer or lease
all or substantially all of its assets to, any Person unless:
(1) the Person formed by or surviving any such consolidation or
any merger (if other than the Company), or to which such transfer or lease
shall have been made, is a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such transfer or lease
shall have been made, expressly assumes by supplemental indenture hereto
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal, premium, if any, interest,
if any and any Additional Amounts, with respect to all of the Securities
and the performance or observance of every covenant under this Indenture
and the Securities on the part of the Company to be performed under the
Securities, the coupons and this Indenture;
(3) immediately after giving effect to the transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary of the Company as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such transaction,
no Default or Event of Default exists and is continuing; and
(4) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by the Securities of any series,
the Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure such Securities equally
and ratably with all indebtedness secured thereby.
The Company shall deliver to the Trustee prior to the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such supplemental indenture
comply with this Indenture and that all conditions precedent to the consummation
of the transaction under this Indenture have been met.
In the event of the assumption by a successor corporation as provided
in clause (2) above, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities with the same
effect as if it had been named hereunder and thereunder and any coupons
appertaining thereto and, except in the case of a lease, all such obligations of
the Company shall terminate.
ARTICLE VIII
Supplemental Indentures
Section 8.01. 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
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are
to be for the benefit less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all
or any series of Securities (and if such Events of Default are to be for
the benefit of less than all series of Securities, stating that such Events
of Default are expressly included solely for the benefit of such series);
or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of Bearer
Securities (including, without limitation to provide that Bearer Securities
may be registrable as to principal only) or to facilitate the issuance of
Securities in global form; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11; or
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United states (including any of the
States and District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal, premium, if any, or
interest, if any, on Bearer Securities or coupons, if any; or
(10) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series; or
(11) to cure an ambiguity or correct any mistake, provided such
action shall not adversely affect the interests of the Holders of
Securities of any series.
Section 8.02. Supplemental Indentures with Consent of Holders. With
the written consent of the Holders of a majority of the aggregate principal
amount of the Outstanding Securities of each series adversely affected by such
supplemental indenture (with the Securities of each series voting as a class),
the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto to add any provisions to or
to change or eliminate any provisions of this Indenture or of any other
indenture supplemental hereto or to modify the rights of the Holders of such
Securities; PROVIDED, HOWEVER, that without the consent of the Holder of each
Outstanding Security affected thereby, a supplemental indenture under this
Section may not:
(1) change the Stated Maturity of the principal of, or premium,
if any, on, or any installment of principal of or premium, if any, or
interest on, or any Additional Amounts on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption, repurchase or repayment thereof, or change the
manner in which the amount of any principal thereof or premium, if any, or
interest or Additional Amounts thereon is determined or reduce the amount
of the principal of any Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02, or change the Place of
Payment where or the currency in which any Securities or any premium or the
interest or Additional Amounts 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);
(2) reduce the percentage in principal amount of the Outstanding
Securities affected thereby, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture;
(3) change any obligation of the Company to maintain an office
or agency in the places and for the purposes specified in Section 9.02; or
(4) make any change in Section 5.07 or this 8.02 except to
increase any percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived with the consent of the Holders of
each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.02 for the Holders to consent
to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
Section 8.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities of one or more series shall be set forth in
a supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 8.04. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 8.05. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
Section 8.06. Reference in Securities to Supplemental Indentures.
Securities, including any coupons, of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities including any coupons of any series
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.
Section 8.07. Effect on Senior Indebtedness. No supplemental
indenture shall adversely affect the rights of any holder of Senior Indebtedness
under Article XII without the consent of such holder.
ARTICLE IX
Covenants
Section 9.01. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each series
of Securities that it will duly and punctually pay the principal of, premium, if
any, and interest together with Additional Amounts, if any, on the Securities of
that series in accordance with the terms of the Securities of such series, any
coupons appertaining thereto and this Indenture. An installment of principal,
premium, if any, or interest, if any, of any Additional Amounts shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment.
Section 9.02. Maintenance of Office or Agency. If Securities of a
series are issued as Registered Securities, the Company will maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, (i) subject
to any laws or regulations applicable thereto, an office or agency in a Place of
Payment for that series which is located outside the United States where
Securities of that series and related coupons may be presented and surrendered
for payment; PROVIDED, HOWEVER, that if the Securities of that series are listed
on The International Stock Exchange of the United Kingdom and the Republic of
Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange, and (ii) subject to any laws or regulations applicable thereto, an
office or agency in a Place by Payment for that series which is located outside
the United States, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture maybe served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of any such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.01, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States, by check mailed to any
address in United States, by transfer to an account located in the United States
or upon presentation or surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to an account located
outside the United States; PROVIDED, HOWEVER, that, if the Securities of a
series are denominated and payable in Dollars, payment of principal of and any
premium or interest on any such Bearer Security shall be made at the office of
the Company's Paying Agent located within the United States, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of one
or more series may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or an agency in each Place of Payment for
Securities (including any coupons, if any) of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise specified as contemplated by Section 3.01, the Trustee
shall initially serve as Paying Agent.
If and so long as the Securities of any series (i) are denominated in
a currency other than Dollars or (ii) may be payable in currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities or as so required, an Exchange Rate Agent.
Section 9.03. Money for Securities Payments to be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of, premium, if any, or interest or any Additional Amount, on any
of the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal, premium, if
any, or 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
in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest or Additional Amounts on Securities of that
series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making to any
payment of principal, premium, if any, or interest or Additional Amounts on
the Securities; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge or defeasance of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of any principal, premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium, if any, or interest or Additional Amount has become due and
payable shall be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon, if any, 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; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, or cause to be mailed to
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 9.04. Corporate Existence. Subject to Article VII, the
Company will at all times do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and its
rights and franchises; PROVIDED that nothing in this Section 9.04 shall prevent
the abandonment or termination of any right or franchise of the Company if, in
the opinion of the Company, such abandonment or termination is in the best
interests of the Company and not prejudicial in any material respect to the
Holders of the Securities.
Section 9.05. Reports by the Company. The Company covenants:
(a) to file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 9.05, as may be required by rules and
regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including information
concerning the Company's compliance with any of its covenants hereunder,
PROVIDED that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder.
Section 9.06. Annual Review Certificate; Notice of Defaults or Events
of Default. The Company covenants and agrees to deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date
hereof, a certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company, covering the preceding
calendar year, stating whether or not to the best knowledge of the signer(s)
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, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
For the purposes of this Section 9.06, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
Section 9.07. Books of Record and Account. The Company will keep
proper books of record and account, either on a consolidated or individual
basis. The Company shall cause its books of record and account to be examined
either on a consolidated or individual basis, by one or more firms of
independent public accountants not less frequently than annually. The Company
shall prepare its financial statements in accordance with GAAP.
ARTICLE X
Redemption
Section 10.01. Applicability of Article. Securities (including
coupons, if any) of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article.
Section 10.02. Election to Redeem Notice to Trustee. The election of
the Company to redeem any Securities, including coupons, if any, shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Securities or coupons, if any,
of any series, the Company shall, at least 60 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 Redemption Price, of
the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (ii) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 10.03. Selection of Securities to be Redeemed. Unless
otherwise specified as contemplated by Section 3.01, if less than all the
Securities (including coupons, if any) of a series with the same terms are to be
redeemed, the Trustee, not more than 45 days prior to the redemption date, shall
select the Securities of the series to be redeemed in such manner 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 of such series,
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. The Trustee shall make the
selection from Securities of the series that are Outstanding and that have not
previously been called for redemption and may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities, including coupons, if any, of that series or any integral multiple
thereof) of the principal amount of Securities, including coupons, if any, of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. The Trustee shall promptly notify the Company in
writing of the Securities selected by the Trustee for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption. If less than all the
Securities of any series with differing issue dates, interest rates and stated
maturities are to be redeemed, the Company in its sole discretion shall select
the particular Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities (including coupons, if
any) shall relate, in the case of any Securities (including coupons, if any)
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Securities (including coupons, if any) which has been or is to be
redeemed.
Section 10.04. Notice of Redemption. Unless otherwise specified as
contemplated by Section 3.01, notice of redemption shall be given in the manner
provided in Section 1.06 not less than 30 days nor more than 60 days prior to
the Redemption Date to the Holders of the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of a series are
to be redeemed, the identification (and in the case of partial redemption,
the principal amounts) of the particular Security or Securities to be
redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to surrendered for
payment for the Redemption Price;
(6) that Securities of the series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed 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.
Section 10.05. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
XI, segregate and hold in trust as provided in Section 9.03) an amount of money
in the currency or currencies (including currency unit or units) in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.01 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless the Redemption Date shall
be an Interest Payment Date) interest accrued to the Redemption Date on, all
Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Company may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 10.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, 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 and the coupons for any such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if any, for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest (and any
Additional Amounts) to the Redemption Date; PROVIDED, HOWEVER, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside the
United States and its possessions (except as otherwise provided in Section 9.02)
and, unless otherwise specified as contemplated by Section 3.01, only upon
presentation and surrender to coupons for such interest; and PROVIDED, FURTHER
that, unless otherwise specified as contemplated by Section 3.01, installments
of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
PROVIDED, HOWEVER, that interest (and any Additional Amounts) represented by
coupons shall be payable only at an office or agency located outside of the
United States (except as otherwise specified pursuant to Section 9.02) and,
unless otherwise provided as contemplated by Section 3.01, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 10.07. Securities Redeemed in Part. Upon surrender of a
Registered Security that is redeemed in part at any Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of that Security, without service charge a new Registered
Security or Securities of the same series, having the same form, terms and
Stated Maturity, in any authorized denomination equal in aggregate principal
amount to the unredeemed portion of the principal amount of the Security
surrendered.
ARTICLE XI
Sinking Funds
Section 11.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 11.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of
such series, with all unmatured coupons appertaining thereto and (ii) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.03. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied be delivering and crediting Securities of that series pursuant to
Section 11.02 and will also deliver to the Trustee any Securities to be so
delivered to the extent it has not previously done so. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 10.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
Section 10.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
10.06 and 10.07.
ARTICLE XII
Subordination of Securities
Section 12.01. Agreement to Subordinate. The Company, for itself,
its successors and assigns, covenants and agrees, and each Holder of Securities,
by his acceptance thereof, likewise covenants and agrees, that the payment of
the principal of (and premium, if any), interest on and any Additional Amounts
payable in respect of each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth in this
Article XII (subject to the provisions of Article IV), in right of payment to
the prior payment in full of all Senior Indebtedness.
Section 12.02. Distribution on Dissolution, Liquidation and
Reorganization. In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors or (iv) any
other marshaling of the assets and liabilities of the Company then, and in any
such event specified in (i), (ii), (iii) or (iv) (each such event, if any,
herein sometimes referred to as a "Proceeding") (subject to the power of a court
of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the Holders thereof by a lawful plan
or reorganization under applicable Bankruptcy Law),
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of the principal thereof, premium, if any, any interest
or any additional amounts required in respect of certain taxes, and any interest
thereon, due thereon or provision must first be made for such payment in cash or
cash equivalents or any other manner acceptable to the holders of such Senior
Indebtedness before any payment or distribution, whether in cash, securities or
property (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
subordinated to the payment of the Securities, such payment or distribution
being referred to as a "Junior Subordinated Payment", but excluding any payment
or distribution of securities of the Company provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
Bankruptcy Law or of any other corporation provided for by such plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Indebtedness to substantially the same
extent as the Securities are so subordinated as provided in this Article), shall
be made by the Company on account of principal, premium, interest or Additional
Amounts of or on the Securities or interest on overdue amounts thereof; and
(b) 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, to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article (and excluding any
payment or distribution of securities of the Company provided for by a plan of
reorganization or readjustment authorized by an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
Bankruptcy Law or of any other corporation provided for by such plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Indebtedness to substantially the same
extent as the Securities are so subordinated as provided in this Article) shall
be paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the principal of, premium, if any, interest or additional
amounts required in respect of certain taxes, and any interest thereon, on the
Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or dis-
tribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness is paid in full, then, and in such
event such payment or distribution shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness. As used in this Article, the phrase "payment in full" (or any
similar phrase), when used to refer to the payment of Senior Indebtedness, shall
mean payment in full of the aggregate amount of such Senior Indebtedness then
outstanding in cash, securities or other property.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and condi-
tions set forth in Article VII shall not be deemed a Proceeding for the purposes
of this Section if the Person formed by such consolidation with or into which
the Company is merged or the Person which acquires by conveyance or transfer
such properties and assets as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article VII.
Section 12.03. Prior Payment to Senior Indebtedness Upon Acceleration
of Securities.
In the event that any Securities of a series are declared due and
payable before their Stated Maturity, then and in such event the holders of the
Senior Indebtedness 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 Indebtedness (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
Indebtedness, before the Holders of the Securities are entitled to 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 any interest or Additional Amounts
on such Securities or on account of the purchase or other acquisition of such
Securities by the Company or any Subsidiary of the Company.
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 12.02 would be applicable.
Section 12.04. No Payment on Securities in Event of Default on Senior
Indebtedness. In the event and during the continuation of (i) a Company default
in the payment of any principal, interest, if any or premium, if any, or any
Additional Amounts on any Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default with respect to any Senior Indebtedness
permitting the holders thereof to accelerate the maturity thereof and written
notice of such event of default (requesting that payments on the Securities
cease) is given to the Company by the holders of Senior Indebtedness, then
unless and until such default in payment or event of default shall have been
cured or waived or shall have ceased to exist, no direct or indirect payment (in
cash, property or securities, by set-off or otherwise) shall be made or agreed
to be made on account of the Junior Subordinated Debt or interest thereon or in
respect of any repayment, redemption, retirement, purchase or other acquisition
of Junior Subordinated Debt.
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 12.02 would be applicable.
Section 12.05. Payments on Securities Permitted. Nothing contained
in this Indenture or in any of the Securities shall (a) affect the obligation of
the Company to make, or prevent the Company from making, at any time except
during the pendency of any Proceeding referred to in Section 12.02 or under the
conditions described in Sections 12.03 and 12.04, payments of principal,
premium, interest or Additional Amounts, and any interest thereon, of or on the
Securities or (b) prevent the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal, premium,
interest or Additional Amounts, and any interest thereon, of or on the
Securities unless the Trustee shall have received at its Corporate Trust Office
written notice of any event prohibiting the making of such payment more than two
Business Days prior to the date fixed for such payment or prior to the execution
of an instrument to satisfy and discharge this Indenture based upon the deposit
of funds under Section 4.01(l)(B).
Section 12.06. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all amounts due or to become
due on all Senior Indebtedness, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
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 Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to all of the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and any interest and Additional Amounts 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 Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Indebtedness
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
Section 12.07. 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 any series on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in any Securities of
any series is intended to or shall (a) impair, as between the Company and the
Holders of the Securities of a series, the obligations of the Company, which are
absolute and unconditional, to pay to the Holders of the Securities the
principal of , premium, if any, and any interest and Additional Amounts 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 Indebtedness; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture including, without limitation,
filing and voting claims in any Proceeding, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 12.08. Authorization of Holders of Securities to Trustee to
Effect Subordination. Each Holder of Securities by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
Section 12.09. Notices to Trustee. The Company shall give prompt
written notice to a Responsible Officer of the Trustee located at the Corporate
Trust Office of the Trustee of any fact known to the Company which would prevent
the making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provisions of this
Indenture, neither the Trustee nor any Paying Agent (other than the Company)
shall be charged with knowledge of the existence of any Senior Indebtedness or
of any event which would prohibit the making of any payment of moneys to or by
the Trustee or such Paying Agent, unless and until the Trustee or such Paying
Agent shall have received (in the case of the Trustee, at its Corporate Trust
Office) written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; PROVIDED, however, that if at least two Business Days
prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal, premium, interest or Additional Amounts, of or on any Security, or
any interest thereon) or the date on which the Trustee shall execute an
instrument acknowledging satisfaction and discharge of this Indenture, the
Trustee shall not have received with respect to such moneys or the moneys
deposited with it as a condition to such satisfaction and discharge the notice
provided for in this Section 12.09, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary, which may be
received by it on or after such two Business Days prior to such date. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
person representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article 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 12.10. Trustee as Holder of Senior Indebtedness. The Trustee
shall be entitled to all the rights set forth in this Article in respect of any
Senior Indebtedness at any time held by it to the same extent as any other
holder of Senior Indebtedness and nothing in this Indenture shall be construed
to deprive the Trustee of any of its rights as such holder.
Section 12.11. No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to 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 Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in
any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 12.12. 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
VI, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness 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 12.13. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
Section 12.14. 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 12.15. 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 , premium, if any, or any
interest or Additional Amounts, 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 Company which are subordinated in right of payment to all Senior
Indebtedness 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, Securities are so subordinated as provided in this Article.
<PAGE>
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one 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: /s/ Roger K. Brooks
-----------------------------------
Name: Roger K. Brooks
Title: Chairman, President and
Chief Executive Officer
{Seal}
Attest:
By: /s/ Michael E. Sproule
-------------------------
Name: Michael E. Sproule
Title: Executive Vice President
and Chief Financial Officer
FIRST UNION NATIONAL BANK
By: /s/ Shawn K. Bednasek
---------------------------------
Name: Shawn K. Bednasek
Title: Vice President
{Seal}
Attest:
By: /s/ Terry Baker
--------------------------
Name: Terry Baker
Title: Vice President
Exhibit 4.16
THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
REGISTERED REGISTERED
AMERUS LIFE HOLDINGS, INC.
6.95% NOTE DUE June 15, 2005
CUSIP 030732AA9
No. R-1 US$125,000,000.00
AMERUS LIFE HOLDINGS, INC., a corporation duly organized and existing
under the laws of Iowa (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of One Hundred Twenty-Five Million Dollars ($125,000,000.00) on
June 15, 2005, and to pay interest thereon from June 16, 1998 or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has been
paid or duly provided for, as the case may be.
Interest will be payable semi-annually on June 15 and December 15 of
each year (each an "Interest Payment Date") at the rate of 6.95% per annum,
commencing December 15, 1998 (except as provided below) until the principal
hereof becomes due and payable and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 6.95% per annum on any
overdue principal and any installment of interest. The interest 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 Note (or one
or more predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest payment, which shall be the June 1 or December 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date by virtue of their having been
such Holder and may either be paid to the Person in whose name this Note (or one
or more predecessor Notes) 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 is to be given to Holders of Notes not less than 10
calendar 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 Notes of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
If any Interest Payment Date(s) or the date of Maturity falls on a day
that is not a Business Day, the required payment of principal, premium, if any,
and/or interest will be made on the next succeeding Business Day as if made on
the date such payment was due, and, so long as such payment is made on such next
succeeding Business Day, no interest will accrue on such payment for the period
from and after such Interest Payment Date or the date of Maturity, as the case
may be, to the date of such payment on the next succeeding Business Day.
While this Note is represented by one or more global notes registered
in the name of the Depository or its nominee, the Company will cause payments of
principal of, premium, if any, and interest on this Note to be made to the
Depository or its nominee, as the case may be, by wire transfer to the extent,
in the funds and in the manner required by agreements with, or regulations or
procedures prescribed from time to time by, the Depository or its nominee, and
otherwise in accordance with such agreements, regulations and procedures. THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE
OF SUCH SUCCESSOR.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein, or its successor as Trustee, or its
Authenticating Agent, by manual signature of an authorized signatory, this Note
will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of securities of the
Company (the "Securities") issued under an Indenture, dated as of June 16,
1998, as amended or supplemented from time to time (the "Indenture"), between
the Company and First Union National Bank, as trustee (the "Trustee"), 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 Company, the Trustee and the Holders of the Notes and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Note is one of the Securities designated on the face hereof limited in
aggregate principal amount to $125,000,000.00.
The Notes of this series contain the following additional covenants
and definitions:
Limitations upon Liens. (a) The Company will not, nor will it
permit any Restricted Subsidiary to, issue, assume or guarantee any indebtedness
for money borrowed if such indebtedness is secured by a Lien upon any Principal
Property of the Company or any Restricted Subsidiary or on any shares of capital
stock of any Restricted Subsidiary (whether such Principal Property or shares of
capital stock are now owned or hereafter acquired) without in any such case
making or causing to be made effective a provision (and the Company covenants
that in any such case it shall make or cause to be made effective such
provision) whereby the Notes, will be secured equally and ratably with, or prior
to, such indebtedness or guarantee; it being understood that in such event the
Company may also so secure any other such indebtedness of the Company or such
Restricted Subsidiary entitled thereto, subject to any applicable priority of
payment.
(b) The provisions of paragraph (a) shall not, however, apply to any
indebtedness secured by any one or more of the following:
(i) Liens on property or assets (including shares of stock or
other equity interests) of any Subsidiary existing at the time such
Subsidiary becomes a Restricted Subsidiary;
(ii) Liens on property or assets (including shares of stock or
other equity interests) existing at the time of acquisition of such
property or assets (including shares of stock or other equity interests)
by the Company or a Restricted Subsidiary, or Liens on property or
assets (including shares of stock or other equity interests) which
secure the payment of all or any part of the purchase price of such
property or assets (including shares of stock or other equity interests)
(such purchase price including any indebtedness assumed or repaid in
connection with such purchase) upon the acquisition of such property or
assets (including shares of stock or other equity interests) by the
Company or a Restricted Subsidiary, or Liens on property or assets
(including shares of stock or other equity interests) which secure any
such indebtedness incurred or guaranteed by the Company or a Restricted
Subsidiary incurred or guaranteed for the purpose of financing or
refinancing all or any part of the purchase price of such property or
assets (including shares of stock or other equity interests) or the
construction of such property or assets (including improvements to
existing property or assets) which indebtedness is incurred
or guaranteed within 180 days after the latest of the acquisition or
completion of such construction (including any improvements on an
existing property or assets) or commencement of operation of such
property or assets and which shall not exceed 100% of such purchase
price;
(iii) Liens securing indebtedness of a Restricted Subsidiary
owing to the Company or to a wholly owned Restricted Subsidiary;
(iv) Liens on property or assets (including shares of stock or
other equity interests) of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a purchase, lease or other acquisition of the
properties or assets (including shares of stock or other equity interests)
of a corporation or other Person as an entirety or substantially as an
entirety by the Company or a Restricted Subsidiary;
(v) Liens on property or assets (including shares of stock or
other equity interests) of the Company or a Restricted Subsidiary in favor
of the United States of America or any State thereof or any department,
agency or instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure any indebtedness incurred or
guaranteed for the purpose of financing all or any part of the purchase
price or the cost of construction of the property or assets (including
shares of stock or other equity interests) subject to such Liens within 180
days after the latest of the acquisition, completion of construction or
commencement of operation of such property or assets (including shares of
stock or other equity interests), PROVIDED that (a) the principal amount of
any indebtedness secured by such a Lien does not exceed 100% of such
purchase price or cost and (b) such Lien does not extend to or cover any
property or assets (including shares of stock or other equity interests)
other than the specific item of property or assets (including shares of
stock or other equity interests)(or portion thereof) acquired, constructed
or constituting the improvements made with the proceeds of such
Indebtedness and the proceeds thereof;
(vi) Liens imposed by or in favor of any governmental authority
for taxes, assessments or other charges which are not yet due or which are
being contested in good faith and by appropriate proceedings and for which
adequate reserves with respect thereto shall have been established on the
books of the Company or any of its Restricted Subsidiaries as required in
accordance with SAP or GAAP, as the case may be;
(vii) (A) Pledges or deposits to secure the Company's or any
Restricted Subsidiary's obligations under worker's compensation laws,
unemployment insurance laws or similar legislation and (B) materialmen's,
mechanics', carriers', repairmen's or other like Liens, or deposits to
obtain the release of such Liens, in an aggregate amount not exceeding
$250,000 at any one time and outstanding no longer than 30 days; in each
case, however, only to the extent arising and continuing in the ordinary
course of business;
(viii) Easements, rights-of-way, restrictions and other similar
encumbrances affecting real property incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and which
do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of
the Company;
(ix) Landlord's Liens for rental not yet due and payable;
(x) Liens which secure statutory obligations of the Company or
any Person controlling the Company which are required by the Iowa
Commissioner of Insurance pursuant to Section 521A.14 of the Iowa Code or
otherwise;
(xi) Liens upon any property or assets (including shares of stock
or other equity interests) of the Company and its Restricted Subsidiaries
securing indebtedness under the Credit Agreement in a principal amount not
exceeding the principal amount outstanding or committed under the Credit
Agreement;
(xii) Liens on property or assets (including shares of stock or
other equity interests) of the Company or any Restricted Subsidiary
outstanding as of the date of the Indenture;
(xiii) Liens on proceeds of any property or assets (including
shares of stock or other equity interests) subject to Lien as permitted by
this paragraph (b);
(xiv) Liens on property or assets (including shares of stock or
other equity interests) used to defease indebtedness not in violation of
Article IV of the Indenture; or
(xv) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Liens
referred to in the foregoing clauses (i) through (xiv), inclusive;
PROVIDED, HOWEVER, that the principal amount of such indebtedness secured
thereby shall not exceed the principal amount of such indebtedness so
secured at the time of such extension, renewal or replacement, and that
such extension, renewal or replacement shall be limited to all or a part of
the property or assets (including shares of stock or other equity
interests) which secured the Lien so extended, renewed or replaced (plus
improvements and construction on such property or assets (including shares
of stock or other equity interests).
(c) Notwithstanding the foregoing provisions of paragraph (b), the
Company and any one or more Restricted Subsidiaries may without securing any of
the Notes issue, assume or guarantee indebtedness secured by any Lien which
would otherwise be subject to the foregoing restrictions in an aggregate amount
which, together with all other indebtedness of the Company and its Restricted
Subsidiaries issued, assumed or guaranteed under the provisions of this
paragraph (c) (not including indebtedness permitted to be secured under clauses
(i) through (xv) of paragraph (b) hereof, does not at the time exceed 10% of
Consolidated Net Tangible Assets.
Limitation on the Disposition of Stock of Restricted
SubsidiariesLimitation on the Disposition of Stock of Restricted Subsidiaries.
Except in a transaction governed by Article VII of the Indenture, the
Company will not issue, sell, convey, lease, transfer or otherwise dispose of
any shares of, securities convertible or exchangeable into or warrants, rights
or options to subscribe for or purchase shares of, capital stock (other than
preferred stock having no voting rights of any kind, except as required by law
or in the event of non-payment of dividends) of any Restricted Subsidiary, nor
will it permit any Restricted Subsidiary to issue (other than to the Company)
any shares (other than directors' qualifying shares) of, or securities
convertible or exchangeable into, or warrants, rights or options to subscribe
for or purchase shares of, capital stock (other than preferred stock having no
voting rights of any kind, except as required by law or in the event of non-
payment of dividends) of any Restricted Subsidiary if, after giving effect to
any such transaction and the issuance of the maximum number of shares issuable
upon the conversion or exercise of all such convertible securities, warrants,
rights or options, the Company would own, directly or indirectly, less than 80%
of the capital stock of any of the Restricted Subsidiaries (other than preferred
stock having no voting rights of any kind, except as required by law or in the
event of non-payment of dividends); PROVIDED, HOWEVER, that (i) any issuance,
sale, conveyance, lease, transfer or other disposition permitted by the
foregoing may only be made for at least fair market value, as determined by the
Board of Directors pursuant to a Board Resolution adopted in good faith, and
(ii) the foregoing shall not prohibit any such issuance, sale, conveyance,
lease, transfer or disposition of securities if required by any law or any
regulation or order of any governmental or insurance regulatory authority,
including, without limitation, any order of the Insurance Commissioner of the
State of Iowa pursuant to Section 521A.14 of the Iowa Code or any successor
provision. Notwithstanding the foregoing, the Company may (x) merge or
consolidate any of the Restricted Subsidiaries into or with another direct,
wholly-owned Subsidiary of the Company and (y) subject to the provisions of
Article VII of the Indenture, sell, convey, lease, transfer or otherwise dispose
of the entire capital stock of any Restricted Subsidiary at one time for at
least a fair market value consideration, as determined by the Board of Directors
pursuant to a Board Resolution adopted in good faith.
Definitions:
"Applicable Insurance Regulatory Authority" means the Iowa
Commissioner of Insurance.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary or Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of the certificate, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed), and (ii) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent balance sheet of the Company and its consolidated Subsidiaries and
prepared in accordance with GAAP.
"Credit Agreement" means the Revolving Credit and Term Loan Agreement,
dated as of October 23, 1997, by and among the Company, the signatory banks
thereto and The Chase Manhattan Bank, as administrative agent, as amended,
modified, supplemented or restated from time to time, or refunded, refinanced,
restructured, repaid, renewed, extended or succeeded (regardless of any gaps in
time), whether with the same or different agents and lenders, on one or more
occasions; PROVIDED, HOWEVER, that in the event that the Credit Agreement is
amended, modified, supplemented or restated, or refunded, refinanced,
restructured, repaid, renewed, extended, renewal, replaced or succeeded after
the date of the Indenture, the Credit Agreement and such amendment,
modification, supplement, restatement, refunding, refinancing, restructuring,
repayment, extension, replacement or succeeding agreement will not be a "Credit
Agreement" for the purposes of this definition if the amount outstanding or
committed thereunder at any time exceeds in the aggregate a principal amount of
$150 million.
"Lien" means any mortgage, deed of trust, pledge, lien, security
interest or other encumbrance (including, without limitation, any conditional
sale or other title retention agreement or lease in the nature thereof, any
filing or agreement to give a lien or to file a financing statement as a debtor
under the Uniform Commercial Code or any similar statute other than to reflect
ownership by a third party of property leased to the Company or any Restricted
Subsidiary under a lease which is not in the nature of a conditional sale or
title retention agreement).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal Property" means all land, buildings, machinery and
equipment, and leasehold interests and improvements in respect of the foregoing,
which would be reflected on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with GAAP, excluding all such tangible
property located outside the United States of America and excluding any such
property which, in the opinion of the Board of Directors set forth in a Board
Resolution, is not material to the Company and its consolidated Subsidiaries
taken as a whole.
"Restricted Subsidiary" means a Subsidiary which is a regulated
insurance company principally engaged in one or more of the life, annuity,
property and casualty insurance businesses; PROVIDED that no such Subsidiary
shall be a Restricted Subsidiary if (i) (a) the total assets of such Subsidiary
are less than 10% of the total assets of the Company and its consolidated
Subsidiaries (including such Subsidiary), in each case as set forth on the most
recent fiscal year-end balance sheets of such Subsidiary and the Company and its
consolidated Subsidiaries, respectively, and computed in accordance with GAAP,
and (b) the total revenues of such Subsidiary are less than 10% of the total
revenues of the Company and its consolidated Subsidiaries (including such
Subsidiary), in each case as set forth on the most recent fiscal year-end income
statements of such Subsidiary and the Company and its consolidated Subsidiaries,
respectively, and computed in accordance with GAAP or (ii) the Subsidiary is an
Unrestricted Subsidiary.
"SAP" means statutory accounting practices prescribed or permitted
by the Applicable Insurance Regulatory Authority, applied on a consistent basis.
"Subsidiary" means, with respect to any Person, (i) a corporation more
than 50% of the combined voting power of the outstanding Voting Stock of which
is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof; (ii) any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has at least a majority
ownership and the power to direct the policies, management and affairs thereof;
or (iii) any other Person which is otherwise controlled by such Person or by one
or more other Subsidiaries of such Person or by such Person and one or more
other Subsidiaries of such Person.
"Unrestricted Subsidiary" means (i) a Subsidiary of the Company which
becomes a Subsidiary after the date of the Indenture which has been designated
as an "Unrestricted Subsidiary" for purposes of the Indenture by the Board of
Directors, as evidenced by a Board Resolution, and at least 20% of whose common
stock is held by one or more persons (other than the Company and its Affiliates)
which acquired such common stock in a bona fide transaction or series of
transactions for fair value or (ii) in the judgment of the Board of Directors,
as evidenced by a Board Resolution, such Subsidiary is not material to the
financial condition of the Company and its consolidated Subsidiaries taken as a
whole.
If any Event of Default with respect to Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
outstanding Securities of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the outstanding Securities of each series, on behalf of the Holders of
all Securities of such series, to waive, with respect to the Securities of such
series, compliance by the Company 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 Note will be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
Holders of Notes may not enforce their rights pursuant to the
Indenture or the Notes except as provided in the Indenture. No reference herein
to the Indenture and no provision of this Note or of the Indenture will alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, and premium, if any, and interest on this Note at the
times, places and rates, herein prescribed.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Events of Default upon compliance by the Company with
certain conditions specified therein, which provisions apply to this Note.
The Notes of this series are issuable only in global or certificated
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein specified and to the limitations described below, if
applicable, Notes of this series are exchangeable for Notes of this series of
like aggregate principal amount of a different authorized denomination, as
requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein specified and to the limitations described below, if applicable, the
transfer of this Note is registerable in the Security Register upon surrender of
this Note for registration of transfer at the office or agency of the Company
maintained for that purpose duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar (which will initially be the Trustee at its principal corporate trust
office located in Charlotte, North Carolina) duly executed by the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new Notes
of this series with like terms and conditions, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
This Note is exchangeable for certificated Notes only upon the terms
and conditions provided in the Indenture. Except as provided in the Indenture,
owners of beneficial interests in this Note will not be entitled to receive
physical delivery of Notes in certificated registered form and will not be
considered the Holders thereof for any purpose under the Indenture.
This Note is in Global form as provided in the Indenture. If at any
time the Depository notifies the Company that it is unwilling or unable to
continue as Depository for this Note or defaults in the performance of its
duties as Depository or if at any time the Depository for this series shall no
longer be eligible or in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to this Note. If a successor
Depository for this Note is not appointed by the Company within 90 days after
the Company receives notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of certificates representing Securities of this
series in exchange for this Security will authenticate and deliver, certificates
representing securities of this series of like tenor and terms in an aggregate
principal amount equal to the principal amount of this Note in exchange for this
Note.
If specified by the Company pursuant to the Indenture with respect to
this Note, the Depository may surrender this Note in exchange in whole or in
part for certificates representing Securities of this series of like tenor and
terms in definitive form on such terms as are acceptable to the Company and the
Depository. Thereupon the Company shall execute, and the trustee or its agent
shall authenticate and deliver, without a service charge, (1) to each Holder
specified by the Security Registrar or the Depository a certificate or
certificates representing Securities of this series of like tenor and terms and
of any authorized denomination as requested by such person in an aggregate
principal amount equal to and in exchange for such Holder's beneficial interest
as specified by the security Registrar or the Depository in this Note; and (2)
to the Depository a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Note and the aggregate principal amount of
certificates representing Notes delivered to Holders thereof.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue and notwithstanding any notation
of ownership or other writing hereon, and none of the Company, the Trustee or
any such agent will be affected by notice to the contrary.
The Indenture and the Notes will be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture will
have the meanings assigned to them in the Indenture unless otherwise defined
herein; and all references in the Indenture to "Security" or "Securities" will
be deemed to include this Note.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Date: ----------- AMERUS LIFE HOLDINGS, INC.
By:
------------------------------------
[SEAL]
Attest:
By:
------------------------------------
<PAGE>
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: ----------- FIRST UNION NATIONAL BANK
as Trustee
By:
-------------------------------------
Authorized Officer
<PAGE>
----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ..................Custodian................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
..................................................
(State)
Additional abbreviations may also be used though not in the above list.
-------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- -----------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- ---------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ----------------- attorney to transfer said Security on the books
of the Company, with full power of substitution in the premises.
Date:
------------------------
Signature
NOTICE:THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER.
THE SIGNATURE(S) MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR
INSTITUTION" THAT IS A MEMBER OR PARTICIPANT IN A "SIGNATURE GUARANTEE PROGRAM"
(E.G., THE SECURITIES TRANSFER AGENTS MEDALLION PROGRAM, THE STOCK EXCHANGE
MEDALLION PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION SIGNATURE
PROGRAM).
<PAGE>
AMERUS LIFE HOLDINGS, INC.
EXHIBIT 11 - STATEMENT RE: COMPUTATION OF EARNINGS PER SHARE
<TABLE>
Six Months Ended Three Months Ended
June 30, 1998 June 30, 1998
----------------------- ---------------------
Number Per Number Per
Net of Share Net of Share
Income Shares Amount Income Shares Amount
------ ------ ------ ------ ----- ------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C> <C>
Basis EPS
Net Income $42,621 34,734 $1.23 $20,864 34,733 $0.60
Effect of dilutive
securities
Option - 290 (0.1) - 258 -
Warrants - 62 (0.1) - 31 -
Stock appreciation
rights - - - - - -
------- ------ ---- ------- ------ -----
Diluted EPS $42,621 35,086 $1.21 $20,864 35,022 $0.60
======= ====== ==== ======= ====== =====
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 7
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<DEBT-HELD-FOR-SALE> 6,745,359
<DEBT-CARRYING-VALUE> 0
<DEBT-MARKET-VALUE> 0
<EQUITIES> 82,789
<MORTGAGE> 512,717
<REAL-ESTATE> 3,766
<TOTAL-INVEST> 7,709,082
<CASH> 160,061
<RECOVER-REINSURE> 5,033
<DEFERRED-ACQUISITION> 166,945
<TOTAL-ASSETS> 10,469,552
<POLICY-LOSSES> 7,091,756
<UNEARNED-PREMIUMS> 0
<POLICY-OTHER> 6,416
<POLICY-HOLDER-FUNDS> 92,569
<NOTES-PAYABLE> 275,856
86,000
0
<COMMON> 34,735
<OTHER-SE> 926,176
<TOTAL-LIABILITY-AND-EQUITY> 10,469,552
72,978
<INVESTMENT-INCOME> 259,995
<INVESTMENT-GAINS> 10,783
<OTHER-INCOME> 0
<BENEFITS> 219,286
<UNDERWRITING-AMORTIZATION> 30,688
<UNDERWRITING-OTHER> 38,449
<INCOME-PRETAX> 58,849
<INCOME-TAX> 17,319
<INCOME-CONTINUING> 42,621
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 42,621
<EPS-PRIMARY> 1.23
<EPS-DILUTED> 1.21
<RESERVE-OPEN> 0
<PROVISION-CURRENT> 0
<PROVISION-PRIOR> 0
<PAYMENTS-CURRENT> 0
<PAYMENTS-PRIOR> 0
<RESERVE-CLOSE> 0
<CUMULATIVE-DEFICIENCY> 0
</TABLE>
