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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of earliest event
reported: June 23, 1994
PROTECTIVE LIFE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-9924 95-2492236
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(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
2801 Highway 280 South, Birmingham, Alabama 35223
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(Address of principal executive offices) (Zip Code)
(205) 879-9230
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(Registrant's telephone number)
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Item 7. EXHIBITS. The documents listed below are filed as Exhibits
with reference to the Registration Statement on Form S-3 (Registration No. 33-
52831) of Protective Life Corporation (the "Company") and PLC Capital L.L.C.
The Registration Statement and the Prospectus Supplement, dated June 23, 1994,
to the Prospectus, dated June 2, 1994, relate to the offering of the Company's
7.95% Senior Notes due July 1, 2004.
1(a) Underwriting Agreement, dated June 23, 1994, among the
Company and the Representatives of the several Underwriters
named in the respective Pricing Agreements described
therein.
1(d) Pricing Agreement, dated June 23, 1994, among the Company, Goldman,
Sachs & Co. and Alex. Brown & Sons Incorporated.
4(g) Senior Indenture, dated as of June 1, 1994, from the Company
to The Bank of New York, as Trustee.
4(g)(1) Supplemental Indenture No. 1, dated as of July 1, 1994, from
the Company to The Bank of New York, as Trustee.
4(l) Specimen Senior Note (included as Exhibit A to Exhibit
4(g)(1)).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Protective Life Corporation has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
PROTECTIVE LIFE CORPORATION
By /s/ Jerry W. DeFoor
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Jerry W. DeFoor
Vice President and Controller
and Chief Accounting Officer
Dated: July 1, 1994
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EXHIBIT INDEX
Exhibit Page
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1(a) Underwriting Agreement, dated June 23, 1994, among the
Company and the Representatives of the several Underwriters
named in the respective Pricing Agreements described
therein.
1(d) Pricing Agreement, dated June 23, 1994, among the Company,
Goldman, Sachs & Co. and Alex. Brown & Sons Incorporated.
4(g) Senior Indenture, dated as of June 1, 1994, from the Company
to The Bank of New York, as Trustee.
4(g)(1) Supplemental Indenture No. 1, dated as of July 1, 1994, from
the Company to The Bank of New York, as Trustee.
4(l) Specimen Senior Note (included as Exhibit A to Exhibit
4(g)(1)).
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PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
June 23, 1994
To the Representatives of the
several Underwriters to be named in the
respective Pricing Agreements
hereinafter described.
Dear Sirs:
From time to time Protective Life Corporation, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements 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 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 (such indenture, including any supplement
thereto relating to the Designated Securities, 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 Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated 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 Underwriters who act
without any firm being designated as their representative. 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 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
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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
telegraphic 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. 33-52831) in
respect of the Securities and Preferred Stock of the Company and the
Preferred Securities of PLC Capital L.L.C., a limited liability company
formed under the laws of the State of Delaware, (collectively, the
"Registered Securities") has been filed with the Securities and Exchange
Commission (the "Commission"); such 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 such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
delivery to each of the other Underwriters, have been declared effective
by the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; and
no stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement at
the time such part of the registration statement become effective but
excluding any Forms T-1 and, if applicable, including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be a part of
such registration statement at effectiveness, each as amended at the time
such part of the registration statement become effective, being
hereinafter called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Registered 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
with the Commission 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 Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
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);
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(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 (i) in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with 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) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been (i) any
material change in the capital stock or any increase in the long-term debt
of the Company or any of its subsidiaries in excess of $9 million, (ii)
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole or (iii) any reduction in
the statutory capital or surplus of the Company's subsidiaries engaged in
the business of insurance (each an "Insurance Subsidiary," and
collectively, the "Insurance Subsidiaries"), taken as a whole in excess of
$9 million, in each case otherwise than as set forth or contemplated in
the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with 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 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;
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(f) Protective Life Insurance Company ("Protective Life Insurance")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation, with
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) Protective Life Insurance is duly organized and licensed as an
insurance company in its state of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required
to be so licensed or authorized to conduct its business as described in
the Prospectus, except for any such jurisdiction in which the failure to
be so licensed or authorized would not have a material adverse effort on
the business, financial condition or results of operations of the Company
and its subsidiaries, considered as a whole; and except as otherwise
specifically described in the Prospectus, neither the Company nor
Protective Life Insurance 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 from such insurance regulatory authority is needed to be
obtained by either of the Company or Protective Life Insurance in any case
where it could be reasonably expected that the failure to obtain any such
additional authorization, approval, order, consent, license, certificate,
permit, registration or qualification would have a material adverse effect
on the business, financial position or results of operations of the
Company and its subsidiaries, considered as a whole;
(h) 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, are fully paid and non-assessable and conform in all material
respects to the descriptions thereof contained in the Prospectus; and all
of the issued shares of capital stock of Protective Life Insurance have
been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(i) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement 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;
(j) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not (1) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a
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default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or Protective Life
Insurance is a party or by which the Company or Protective Life Insurance
is bound or to which any of the property or assets of the Company or
Protective Life Insurance is subject, except, in all such cases, for such
conflicts, breaches, violations or defaults as would not have a material
adverse effect on the financial condition or results of operations of the
Company and Protective Life Insurance taken as a whole or would not affect
the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities or (2) result in any
violation of the provisions of (A) the Certificate of Incorporation or
By-laws of the Company or Protective Life Insurance or (B) any statute or
any order, rule or regulation of any court or insurance regulatory
authority or other governmental agency or body having jurisdiction over
the Company or Protective Life Insurance or any of their properties;
provided, however that in the case of clause (B) of this paragraph 2(j),
this representation and warranty shall not extend to such violations as
would not have a material adverse effect on the financial condition or
results of operations of the Company and Protective Life Insurance taken
as a whole or would not affect the validity of or otherwise have a
material adverse effect on the issuance or sale of the Designated
Securities; provided further, that insofar as this representation and
warranty relates to the performance by the Company of its obligations
under this Agreement, the Pricing Agreement or the Indenture relating to
the Designated Securities, such performance is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
insurance regulatory authority or other governmental agency or body having
jurisdiction over the Company or Protective Life Insurance is required for
the issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or any Pricing Agreement
or the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky laws
or insurance securities laws in connection with the purchase and
distribution of the Securities by the Underwriters and except those which,
if not obtained, will not have a material adverse effect on the financial
condition or results of operations of the Company and Protective Life
Insurance taken as a whole or would not affect the validity of or
otherwise have a material adverse effect on the issuance or sale of the
Designated Securities;
(k) Other than as set forth or contemplated 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 could reasonably be
expected to have, individually or in the aggregate, a material adverse
effect on the consolidated financial position, stockholders' equity (if
applicable), total surplus (if applicable) or results of operations of 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; and
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. Unless otherwise specified in the applicable Pricing Agreement,
global certificates for Designated Securities to be purchased by each
Underwriter pursuant to such Pricing Agreement, registered in the name Cede &
Co., shall be delivered by or on behalf of the Company to The Depository Trust
Company, which shall release such Designated Securities to the accounts of the
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Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company or, if so
requested by the Company, by wire transfer to a bank account specified by the
Company and described in Schedule II to such Pricing Agreement, in the funds
specified in such Pricing Agreement, all 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.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives (which approval will not be unreasonably withheld) 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 other time as may
be required by Rule 424(b); 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 Securities and
prior to the Time of Delivery for such Securities which shall be
reasonably 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 use promptly its best efforts to
obtain its withdrawal;
(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 United States
jurisdictions as the Representatives may reasonably 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 and
provided further that in connection therewith the Company shall not be
required to qualify such Designated Securities for offering and sale under
the securities laws of any such jurisdiction for a period in excess of
nine months after the initial time of issue of the Prospectus as amended
or supplemented relating to such Designated Securities;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably
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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, provided, however, that in case any Underwriter is required
under the Act to deliver a prospectus in connection with the offering or
sale of the Designated Securities at any time more than nine months after
the date of the Pricing Agreement relating to the Designated Securities,
the costs of such preparation and furnishing of such amended or
supplemented Prospectus shall be borne by the Underwriters of such
Designated Securities;
(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)),
an earning 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); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier 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 the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) 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, subject to the proviso
to Section 5(c), the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of producing and printing or duplicating any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) 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
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the cost of
qualifying the Securities with the Depository Trust Company (if applicable);
(viii) 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 (ix) all other costs and expenses incident to
the performance of its obligations
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hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 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; 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) Sullivan & Cromwell, or other counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated the Time of Delivery for such Designated Securities, with respect to
the incorporation of the Company, the validity of the Indenture, the
Designated Securities, the Registration Statement, the Prospectus as
amended or supplemented and 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) Deborah J. Long, Esq., Senior Vice President and General Counsel
of the Company, or any successor having substantially equivalent
responsibilities with the Company, shall have furnished to the
Representatives such counsel's written opinion, dated each Time of
Delivery for such Designated Securities, respectively, 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 Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented, 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;
(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, are fully paid and non-assessable and
conform in all material respects to the description thereof in the
Prospectus as amended or supplemented; and all of the issued shares
of capital stock of Protective Life Insurance have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly
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or indirectly by the Company, free and clear of any perfected
security interests and, to such counsel's best knowledge, any other
security interests, claims, liens or encumbrances;
(iii) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of the Designated Securities, the
Indenture, this Agreement, any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated
will not (i) 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 Protective Life Insurance is a party or by which the Company or
Protective Life Insurance is bound or to which any of the property
or assets of the Company or Protective Life Insurance is subject,
except, in all such cases, for such conflicts, breaches, violations
or defaults as would not have a material adverse effect on the
financial condition of the Company and Protective Life Insurance
taken as a whole or would not have a material adverse effect on the
issuance or sale of the Designated Securities, or (ii) result in any
violation of the provisions of (A) the Certificate of Incorporation
or By-Laws of the Company or Protective Life Insurance or (B) any
statute known to such counsel to be applicable to the Company or
Protective Life Insurance or any of their respective properties, or
any order, rule or regulation known to such counsel of any court or
insurance regulatory authority or other governmental agency or body
having jurisdiction over the Company or Protective Life Insurance or
any of their respective properties, except, with respect to clause
(B) of this paragraph (iii), such violations as would not have a
material adverse effect on the financial condition or results of
operations of the Company and Protective Life Insurance taken as a
whole or would not affect the validity of or otherwise have a
material adverse effect on the issuance or sale of the Designated
Securities; and except that for purposes of this paragraph (iii)
such counsel need not express any opinion as to any violation of any
federal or state securities laws or Blue Sky or insurance securities
laws; provided further, that insofar as performance by the Company
of its obligations under the Indenture, this Agreement and the
Pricing Agreement relating to the Designated Securities is
concerned, such counsel need not express any opinion as to
bankruptcy, insolvency, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and as to
general equity principles;
(iv) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries is required for the issue and sale of the
Designated Securities being delivered at such Time of Delivery or
the consummation by the Company of the transactions contemplated by
this Agreement, any Pricing Agreement, the Designated Securities or
the Indenture, except such as have been, or will have been prior to
each Time of Delivery, obtained under the Act, the Trust Indenture
Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws or insurance securities laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters, and except those which, if not
obtained, would not have a material adverse effect on the financial
condition or results of operation of the Company and its
subsidiaries taken as a whole;
9
<PAGE>
(v) To the best of such counsel's knowledge, 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 of a character
required under the Federal securities laws to be disclosed in the
Registration Statement or Prospectus which are not adequately
disclosed in the Registration Statement or Prospectus;
(vi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related notes, the financial statement schedules and
other financial and statistical data included therein as to which
such counsel need express no opinion), when they become 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;
In rendering the opinion required by subsection (c) of this Section, (i)
such counsel may state that she is admitted to the Bar of the State of Alabama
only, and (ii) such counsel may rely (A) as to any matter to which you consent
(which consent shall not be unreasonably withheld), to the extent specified in
such opinion, upon the opinions (copies of which shall have been provided to the
Representatives) of other counsel in good standing whom such counsel believes to
be reliable, provided that such counsel shall state that she believes that both
she and the Representatives are justified in relying on such opinions and (B) as
to matters of fact, upon certificates of officers and representatives of the
Company and of public officials (copies of which shall have been provided to the
Representatives), provided that such counsel shall state that she believes that
both she and the Representatives are justified in relying upon such
certificates.
Such counsel shall also have stated that, while she has not herself
checked the accuracy or completeness of or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement or the Prospectus, in the
course of her review and discussion of the contents of the Registration
Statement and Prospectus and any amendment or supplement thereto with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to her attention
that would cause her to believe that the Registration Statement or the
Prospectus, as amended or supplemented, as of the date of the Pricing Agreement
with respect to the Designated Securities and the Time of Delivery for such
Designated Securities (other than the financial statements and related notes,
the financial statement schedules, other financial and statistical data included
therein and the Statement of Eligibility of the Trustee on Form T-1 under the
Trust Indenture Act as to which she need express no opinion) contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) Debevoise & Plimpton, or other counsel for the Company
satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Securities have been duly authorized,
issued, executed, authenticated and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to general
equity principles
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(regardless of whether considered in a proceeding at law or in
equity); and the Designated Securities conform in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, the Indenture constitutes a valid and
legally binding instrument enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to general
equity principles (regardless of whether considered in a proceeding
at law or in equity); the Indenture has been duly qualified under
the Trust Indenture Act; and the Indenture conforms in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(iii) This Agreement and the Pricing Agreement with respect
to the Designated Securities being delivered at such Time of
Delivery have been duly authorized, executed and delivered by the
Company;
(iv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related notes, the financial
statement schedules and other financial and statistical data
included therein, 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; and
(v) The statements contained in the Prospectus under the
caption "Description of Debt Securities of Protective Life" and the
corresponding sections and any section describing tax matters in any
prospectus supplement relating to the Designated Securities being
delivered at such Time of Delivery, insofar as such statements
constitute summaries of certain provisions of the documents or U.S.
tax laws referred to therein, fairly summarize the material
provisions of such documents or U.S. tax laws.
In rendering the foregoing opinion, Debevoise & Plimpton may state
that they express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the laws of the State of New York and The
General Corporation Law of the State of Delaware.
Debevoise & Plimpton shall also have stated that, while they have
not themselves checked the accuracy or completeness of or otherwise verified,
and are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, except to the limited extent stated in paragraphs (i), (ii) and (v)
above, in the course of their review and discussion of the contents of the
Registration Statement and the Prospectus with certain officers and employees of
the Company and its independent accountants, but without independent check or
verification, no facts have come to the attention of such counsel that would
cause such counsel to believe that the Registration Statement or the Prospectus,
as amended or supplemented, as of the date of the Pricing Agreement with respect
to the Designated Securities and the Time of Delivery for such Designated
Securities (other than the financial statements and related notes, the financial
statement schedules, and other financial and statistical data included therein,
and except for the Statement of Eligibility of the Trustee on Form T-1 under the
Trust Indenture Act, as
11
<PAGE>
to which such counsel need express no opinion) contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) On the date of the Pricing Agreement for 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 date of the Pricing Agreement, 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;
(f) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not have been any
change in the capital stock or any increase in the 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, stockholders' equity, total surplus (if
applicable) or results of operations of the Company and its subsidiaries
(in the case of the Insurance Subsidiaries on either a GAAP or statutory
basis), otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described
above, 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 amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in any rating
of the Company or Protective Life Insurance or the rating accorded the
Company's debt securities by Moody's Investors Service, Inc., Standard &
Poor's Corporation, A.M. Best Company, Inc. or Duff & Phelps Inc. and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, any such
rating;
(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; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iii) 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 (iii) 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 by the Prospectus as amended and supplemented; and
(i) 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 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.
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<PAGE>
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 (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, as amended or supplemented, or any other such prospectus, in light
of the circumstances in which they were made, 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 any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities and provided,
further, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus or any preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact such
Underwriter sold Designated Shares to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) in any case where such delivery is required by the
Act if such Underwriter failed to make reasonable efforts generally consistent
with the then prevailing industry practice to effect such delivery and the
Company has previously furnished copies thereof in sufficient quantities to such
Underwriter (or to the Representatives) and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus or any preliminary prospectus
supplement which was corrected in the Prospectus (excluding incorporated
documents) (or the Prospectus as amended or supplemented (excluding incorporated
documents)).
(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 (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, as amended or supplemented,
or any such prospectus, in light of the circumstances in which they were made,
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.
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(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 reasonably 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. In no event,
shall any indemnifying party be liable for the fees and expenses of more than
one counsel (in addition to local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(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 to which such loss, claim, damage or liability (or action in respect
thereof) relates. 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 contribution 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
14
<PAGE>
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 reasonably satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, 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
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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.
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 Section 6 and Section 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 reasonable 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 Section 6 and Section 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 Section 8 and Section 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, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
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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,
PROTECTIVE LIFE CORPORATION
By: /s/ John D. Johns
--------------------------------------
Name: John D. Johns
Title: Executive Vice President and
Chief Financial Officer
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ANNEX I
PRICING AGREEMENT
[Goldman, Sachs & Co., or other Lead Representative]
[Names of Co-Representatives, if any]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Goldman, Sachs & Co.,]
85 Broad Street,
New York, New York 10004.
........., 19..
Dear Sirs:
Protective Life Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ........, 1994 (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
I-1
<PAGE>
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 [One for the Issuer and each of the Representatives plus
one for each counsel] 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
and the Company. 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,
PROTECTIVE LIFE CORPORATION
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
[Goldman, Sachs & Co., or other Lead Representative]
[Name(s) of Co-Representative(s)]
By:
----------------------------------
[(Goldman, Sachs & Co.)]
[Name(s) of Co-Representative Corporation(s)]
By:
-----------------------------------
Name:
Title:
- - ---------------------------------------------
[Name(s) of Co-Representative Partnership(s)]
On behalf of each of the Underwriters
I-2
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- -----------
[Goldman, Sachs & Co. or other Lead Representative] $
[Name(s) of Co-Representative(s)]..................
[Names of other Underwriters]......................
------------------
Total................................. $
------------------
------------------
I-3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures]
due
AGGREGATE PRINCIPAL AMOUNT:
[$ ]
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities,
plus accrued interest from to
[and accrued amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
__% of the principal amount of the Designated Securities,
plus accrued interest from to
[and accrued amortization, if any, from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[[New York] Clearing House funds]
[Immediately Available Funds]
INDENTURE:
[Indenture dated , 1994, between the Company
and The Bank of New York, as Trustee]
[Subordinated Indenture dated , 1994, between
the Company and AmSouth Bank, N.A., as Trustee]
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
I-4
<PAGE>
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise
than through the sinking fund, in whole or in part at the option of the
Company, in the amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- -----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling in or after , , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their principal amount
plus accrued interest][,together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$] principal
amount of Designated Securities in the years through at 100% of their
principal amount plus accrued interest].
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest. Initial
annual interest rate will be %, and thereafter annual interest rate will
be adjusted on , and to a rate not less than % of
the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
I-5
<PAGE>
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through and thereafter will be
adjusted [monthly] [on each , , ________________
and ] [to an annual rate of % above the average rate for
-year [month] [securities] [certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the excess, if any, of
(i) then current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for -month
Treasury bills); [from and thereafter the rate will be the then
current interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
- - -----------------------
* A description of particular tax, accounting or other unusual features (such as
the addition of event risk provisions) of the Securities should be set forth,
or referenced to an ATTACHED and ACCOMPANYING description, if necessary to
ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
I-6
<PAGE>
ANNEX II
Pursuant to Section 7(e) 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 consolidated financial statements and financial
statement schedules (and, if applicable, prospective financial statements
and/or pro forma financial information) audited 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 and the Exchange Act and the related published rules
and regulations;
(iii) On the basis of limited procedures, not constituting an audit conducted
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited consolidated 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 consolidated financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and its
subsidiaries who have responsibility for financial and accounting matters and
such other inquiries and procedures (including those for a review of interim
financial information as described in SAS No. 71) as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference 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) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows 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 as it
applies to Form 10-Q and the related published rules and
regulations;
(C) any unaudited pro forma condensed consolidated financial
statements included in or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation
S-X and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
II-1
<PAGE>
(D) as of a specified date not more than five days prior to
the date of such letter, there was any change in the capital stock,
increase in long-term debt, or any decreases in consolidated net
current assets or shareholder's equity of the Company and its
subsidiaries, or any decreases in consolidated net sales or in the
total or per share amounts of income before extraordinary items or
of net income, 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 all instances for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) In addition to the examination 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 paragraph (iii) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the 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 all 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.
II-2
<PAGE>
PRICING AGREEMENT
Goldman, Sachs & Co.
Alex. Brown & Sons Incorporated
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
June 23, 1994
Dear Sirs:
Protective Life Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated June 23, 1994 (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.
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us eight 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 and the Company. 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,
PROTECTIVE LIFE CORPORATION
By: /s/ John D. Johns
----------------------------------
Name: John D. Johns
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
By: /s/ Goldman, Sachs & Co.
----------------------------------
(Goldman, Sachs & Co.)
On behalf of themselves and
Alex. Brown & Sons Incorporated
2
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ------------
Goldman, Sachs & Co. .............................
Alex. Brown & Sons Incorporated ................... $37,500,000
37,500,000
-----------
Total................................ $75,000,000
-----------
-----------
3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
7.95% Senior Notes due July 1, 2004
AGGREGATE PRINCIPAL AMOUNT:
$75,000,000
PRICE TO PUBLIC:
99.816% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
99.166% of the principal amount of the Designated Securities
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately Available Funds
INDENTURE:
Indenture dated as of June 1, 1994, between the Company
and The Bank of New York, as Trustee, as supplemented
by Supplemental Indenture No. 1, to be dated as of
July 1, 1994, among the Company and The Bank of
New York.
MATURITY:
July 1, 2004
INTEREST RATE:
7.95% per annum payable semi-annually
INTEREST PAYMENT DATES:
January 1 and July 1,
commencing January 1, 1995
REDEMPTION PROVISIONS:
No provisions for redemption
SINKING FUND PROVISIONS:
No sinking fund provisions
4
<PAGE>
DEFEASANCE PROVISIONS:
Article 4 of the Indenture shall apply to the Notes.
TIME OF DELIVERY:
9:30 a.m., July 1, 1994.
CLOSING LOCATION:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Goldman, Sachs & Co.
Alex. Brown & Sons Incorporated
Address for Notices, etc.:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
OTHER TERMS:
N/A
5
<PAGE>
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
PROTECTIVE LIFE CORPORATION
to
THE BANK OF NEW YORK, Trustee
SENIOR INDENTURE
------------------------------
Dated as of June 1, 1994
------------------------------
Providing for Issuance of
Senior Debt Securities in Series
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Indenture, dated as of
June 1, 1994, and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
- - ------------------- ---------
310(a)(1)................................. 6.12
(a)(2)................................. 6.12
(a)(3)................................. TIA
(a)(4)................................. Not applicable
(a)(5)................................. TIA
(b).................................... 6.10; 6.12; TIA
311(a).................................... TIA
(b).................................... TIA
312(a).................................... 6.8
(b).................................... TIA
(c).................................... TIA
313(a).................................... 6.7; TIA
(b).................................... TIA
(c).................................... 6.7; TIA
(d).................................... 6.7; TIA
314(a).................................... 9.5; 9.6; TIA
(b).................................... Not Applicable
(c)(1)................................. 1.2
(c)(2)................................. 1.2
(c)(3)................................. Not Applicable
(d).................................... Not Applicable
(e).................................... 1.2
(f).................................... TIA
315(a).................................... 6.1
(b).................................... 6.6
(c).................................... 6.1
(d)(1)................................. TIA
(d)(2)................................. TIA
(d)(3)................................. TIA
(e).................................... TIA
316(a)(last sentence)..................... 1.1
(a)(1)(A).............................. 5.2; 5.8
(a)(1)(B).............................. 5.7
(b).................................... 5.9; 5.10
<PAGE>
(c).................................... 1.4; TIA
317(a)(1)................................. 5.3
(a)(2)................................. 5.4
(b).................................... 9.3
318(a).................................... 1.11
(b).................................... TIA
(c).................................... 1.11; TIA
- - -------------
This reconciliation and tie section does not constitute part of the
Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION............................. 1
1.1 Definitions.................................. 1
1.2 Compliance Certificates and
Opinions................................... 12
1.3 Form of Documents Delivered
to Trustee................................. 13
1.4 Acts of Holders ............................. 14
1.5 Notices, etc., to Trustee
and Company ............................... 17
1.6 Notice to Holders; Waiver ................... 17
1.7 Headings and Table of Contents............... 18
1.8 Successor and Assigns ....................... 19
1.9 Separability ................................ 19
1.10 Benefits of Indenture ....................... 19
1.11 Governing Law ............................... 19
1.12 Legal Holidays .............................. 19
ARTICLE 2 SECURITY FORMS......................................... 20
2.1 Forms Generally ............................. 20
2.2 Form of Trustee's Certificate
of Authentication.......................... 21
2.3 Securities in Global Form ................... 21
2.4 Form of Legend for Securities
in Global Form ............................ 22
ARTICLE 3 THE SECURITIES......................................... 22
3.1 Amount Unlimited; Issuable
in Series.................................. 22
3.2 Denominations................................ 27
3.3 Execution, Authentication,
Delivery and Dating........................ 27
3.4 Temporary Securities......................... 31
3.5 Registration, Transfer
and Exchange............................... 32
3.6 Replacement Securities....................... 37
3.7 Payment of Interest; Interest
Rights Preserved .......................... 39
3.8 Persons Deemed Owners ....................... 41
3.9 Cancellation................................. 42
3.10 Computation of Interest...................... 43
i
<PAGE>
PAGE
----
3.11 CUSIP Numbers................................ 43
3.12 Currency and Manner of Payment
in Respect of Securities................... 43
3.13 Appointment and Resignation of
Exchange Rate Agent........................ 49
ARTICLE 4 SATISFACTION, DISCHARGE
AND DEFEASANCE .................................... 50
4.1 Termination of Company's
Obligations Under the
Indenture ................................. 50
4.2 Application of Trust Funds................... 51
4.3 Applicability of Defeasance
Provisions; Company's Option to
Effect Defeasance or Covenant
Defeasance................................. 52
4.4 Defeasance and Discharge..................... 52
4.5 Covenant Defeasance.......................... 53
4.6 Conditions to Defeasance or
Covenant Defeasance........................ 54
4.7 Deposited Money and Government
Obligations to Be Held in Trust............ 56
4.8 Repayment to Company ........................ 57
4.9 Indemnity for Government
Obligations ............................... 57
4.10 Reinstatement................................ 57
ARTICLE 5 DEFAULTS AND REMEDIES.................................. 58
5.1 Events of Default............................ 58
5.2 Acceleration; Rescission and
Annulment ................................. 61
5.3 Collection of Indebtedness
and Suits for Enforcement
by Trustee ................................ 61
5.4 Trustee May File Proofs
of Claim................................... 62
5.5 Trustee May Enforce Claims
Without Possession of Securities........... 62
5.6 Delay or Omission Not Waiver ................ 63
5.7 Waiver of Past Defaults...................... 63
5.8 Control by Majority.......................... 63
5.9 Limitation on Suits by
Holders.................................... 63
5.10 Rights of Holders to Receive
Payment.................................... 64
5.11 Application of Money Collected .............. 65
ii
<PAGE>
PAGE
----
5.12 Restoration of Rights and
Remedies .................................. 65
5.13 Rights and Remedies Cumulative ............ 65
5.14 Waiver of Usury, Stay or Extension
Laws....................................... 66
5.15 Undertaking for Costs........................ 66
ARTICLE 6 THE TRUSTEE............................................ 66
6.1 Certain Duties and Responsibilities
of the Trustee............................. 66
6.2 Rights of Trustee ........................... 67
6.3 Trustee May Hold Securities.................. 68
6.4 Money Held in Trust ......................... 68
6.5 Trustee's Disclaimer......................... 68
6.6 Notice of Defaults........................... 69
6.7 Reports by Trustee to Holders................ 69
6.8 Securityholder Lists......................... 69
6.9 Compensation and Indemnity................... 70
6.10 Replacement of Trustee....................... 71
6.11 Acceptance of Appointment
by Successor .............................. 73
6.12 Eligibility; Disqualification................ 74
6.13 Merger, Conversion, Consolidation
or Succession to Business ................. 75
6.14 Appointment of Authenticating
Agent...................................... 75
ARTICLE 7 CONSOLIDATION, MERGER OR SALE BY THE
COMPANY ........................................... 77
7.1 Consolidation, Merger or Sale
of Assets Permitted ....................... 77
ARTICLE 8 SUPPLEMENTAL INDENTURES ............................... 79
8.1 Supplemental Indentures Without
Consent of Holders ........................ 79
8.2 Supplemental Indentures With
Consent of Holders ........................ 80
8.3 Compliance with Trust Indenture Act.......... 82
8.4 Execution of Supplemental
Indentures................................. 82
8.5 Effect of Supplemental
Indentures ............................... 82
8.6 Reference in Securities to
Supplemental Indentures ................... 82
iii
<PAGE>
PAGE
----
ARTICLE 9 COVENANTS ............................................. 83
9.1 Payment of Principal, Premium,
if any, and Interest ...................... 83
9.2 Maintenance of Office or Agency ............. 83
9.3 Money for Securities to Be
Held in Trust; Unclaimed Money ............ 85
9.4 Corporate Existence ......................... 86
9.5 Reports by the Company....................... 86
9.6 Annual Review Certificate;
Notice of Defaults or Events
of Default................................. 88
9.7 Books of Record and Account.................. 88
ARTICLE 10 REDEMPTION ........................................... 88
10.1 Applicability of Article .................... 88
10.2 Election to Redeem; Notice
to Trustee ................................ 88
10.3 Selection of Securities to
Be Redeemed ............................... 89
10.4 Notice of Redemption ........................ 90
10.5 Deposit of Redemption Price.................. 91
10.6 Securities Payable on Redemption
Date ...................................... 92
10.7 Securities Redeemed in Part ................. 93
ARTICLE 11 SINKING FUNDS ........................................ 93
11.1 Applicability of Article .................... 93
11.2 Satisfaction of Sinking
Fund Payments with
Securities ................................ 94
11.3 Redemption of Securities for
Sinking Fund .............................. 94
iv
<PAGE>
INDENTURE, dated as of June 1, 1994, from PROTECTIVE LIFE
CORPORATION, a Delaware corporation (the "Company"), to THE BANK OF NEW YORK,
Trustee, a New York banking corporation (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 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. 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 generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this
<PAGE>
Indenture as a whole and not to any particular Article, Section or other
subdivision.
"AFFILIATE" of any specified Person means any 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, the Executive Committee or any other duly authorized committee
thereof.
"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 3.1, each Monday, Tuesday, Wednesday, Thursday
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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 New
York, New York at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
101 Barclay Street, 21st Floor, New York, New York 10286, Attention: Corporate
Trust Trustee Administration.
"CURRENCY UNIT" for all purposes of this Indenture shall include
any composite currency.
"DEBT" means indebtedness for money borrowed.
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"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 3.1 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 3.1, a New York Clearing House bank designated
pursuant to Section 3.1 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
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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.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States or, if specified as contemplated by Section
3.1, 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 3.1, 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.
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"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 3.1, (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 3.1
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 3.1, 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.
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"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 5.2.
"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 cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money or Government Obligations in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities 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
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Indenture or provisions therefor satisfactory to the Trustee have been
made;
(iii) Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
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 5.2, (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
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Security pursuant to Section 3.1, 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 be determined by the Company
upon the issuance of such Securities.
"PERSON" means any individual, corporation, partnership, 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 3.1 and 9.2.
"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 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen
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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 3.1.
"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
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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 3.7.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in 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" of any Person means any Person of which at least a
majority of capital stock having ordinary voting power for the election of
directors or other governing body of such Person is owned by such Person
directly or through one or more 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 at the end of a fiscal quarter of the Company,
prepared in accordance with generally accepted accounting principles.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
effect on the date of this Indenture, except as provided in Section 8.3.
"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 3.1, 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
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by Section 3.1, 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.
(b) The following terms shall have the meanings specified in the
Sections referred to opposite such term below:
Term Section
---- -------
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.12(d)
"Conversion Date" 3.12(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.12(h)
"Event of Default" 5.1
"Notice of Default" 5.1(3)
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.7(c)
Section 1.2. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, 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 2.3 and 9.6) shall include:
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(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other 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.
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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 1.4. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by 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 acknowledgements 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
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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.
(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
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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 5.2, (iii) any direction referred to in Section 5.8 or (iv)
any request to institute proceedings referred to in Section 5.9(2), 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 purposes
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 cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this
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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 1.6.
Section 1.5. 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,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at Protective Life Corporation, 2801 Highway 280 South,
Birmingham, Alabama 35223, Attention: General Counsel or at any other
address previously furnished in writing to the Trustee by the Company.
Section 1.6. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice to Holders of any 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 3.1.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any
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defect in any notice so mailed, to any particular Holder 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 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 to 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. 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.
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 1.7. HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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Section 1.8. SUCCESSOR AND ASSIGNS. All covenants and agreements
in this Indenture by the Company shall bind its successor and assigns, whether
so expressed or not.
Section 1.9. 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
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Securities of any 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 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 2
SECURITY FORMS
Section 2.1. 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 3.4, 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 3.3 for
the authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer
Securities shall have interest coupons attached.
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The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders 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 2.2. 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.
THE BANK OF NEW YORK,
as Trustee
By
------------------------
Authorized Signatory
Section 2.3. SECURITIES IN GLOBAL FORM. If Securities of or
within a series are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate or specified amount
of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be 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 3.3 or 3.4. Subject to the provisions of
Section 3.3 and, if applicable, Section 3.4, 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 1.2 hereof and need not be accompanied
by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3 shall apply to
any Security in global form if such
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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 1.2 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 3.3.
Notwithstanding the provisions of Section 2.1 and 3.7, unless
otherwise specified as contemplated by Section 3.1, 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 2.4. 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 3
THE SECURITIES
Section 3.1. 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
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a Board Resolution and (subject to Section 3.3) 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 3.4, 3.5, 3.6,
8.6, or 10.7);
(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 10.3, 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;
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(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),
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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 5.2 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 3.7, 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 5.1 or covenants of the Company set forth
in Article 9 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 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
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restrictions applicable to the offering, sale or delivery of Bearer
Securities and, if other than as provided in Section 3.5, 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 4.4 and 4.5, 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
2.4 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 denomination, and
(iv) if other than as provided in Section 3.5, 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
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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 3.3) 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 3.2. DENOMINATIONS. Unless otherwise provided as
contemplated by Section 3.1, 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 3.3. 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.
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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 2.1 and 3.1, 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
2.1, 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
3.1, 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,
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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 3.1 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 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to the two preceding paragraphs
in connection with the authentication
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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 2.1 and 3.1 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
If the Company shall establish pursuant to Section 3.1 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 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 2.4. and the terms of the Board Resolution
or supplemental indenture relating to such series.
Each Depository designated pursuant to Section 3.1 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 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
governing the respective duties and rights of such Depository 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
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dated as of the date specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled to any
benefits under this Indenture or be valid or obligatory for any purpose until
authenticated 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 3.6
or 3.7, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
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 3.9 together with a written statement (which need not comply
with Section 1.2 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 3.4. 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.
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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 9.2 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 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 3.1.
Section 3.5. 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 9.2
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.
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Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency maintained pursuant to Section
9.2 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 3.1, Bearer
Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section 3.1, 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
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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
9.2, 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. Unless
otherwise specified pursuant to Section 3.1 with respect to a series of
Securities or as otherwise provided herein, owners of beneficial interests in
Securities of such series represented by a Security issued in global form will
not be entitled to have Securities of such series registered in their names,
will not receive or be entitled to receive physical delivery of Securities of
such series in certificated form and will not be considered the holders thereof
for any purposes hereunder.
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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 or exchanged
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 if at any time the Depository for the
Securities of such series shall no longer be eligible under Section 3.3, 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's election pursuant to
Section 3.1(b)(23) 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.
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If specified by the Company pursuant to Section 3.1 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 cancelled 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.
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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 3.4 or 10.7 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 for a period
beginning at the opening of business 15 days before any selection for redemption
of Securities of like tenor and of the series of which such Security is a part
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of Securities
of like tenor and of such series to be redeemed; (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 3.6. 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,
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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.
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 Security with a destroyed, lost or stolen 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
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, 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 the payment of a sum sufficient to cover any tax or other
governmental charge
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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
securities 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 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a)
Unless otherwise provided as contemplated by Section 3.1 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 for such interest at the office or agency maintained for such
purpose pursuant to 9.2; PROVIDED, HOWEVER, that at the option of the
Company, interest on any series of Registered Securities that bear interest may
be paid (i) by check mailed to the address of the Person entitled thereto as
it shall appear on the Register of Holders of Securities of such series or
(ii) at the expense of the Company, by wire transfer to an account maintained
by the Person entitled thereto as specified in the Register of Holders of
Securities of such series.
Unless otherwise provided as contemplated by Section 3.1 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
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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 3.1 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 (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
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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).
(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
3.5, 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 3.8. PERSONS DEEMED OWNERS. Prior to due presentment of
any Registered Security for registration of transfer, the Company, the Trustee
and any agent of the
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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 Section
3.7) interest on 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 3.9. 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
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be required to, dispose of cancelled 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 3.1, 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 3.1, 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 3.1 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.1, 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
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signature guarantees and in the applicable form established pursuant to Section
3.1, 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 4 or with respect to which a notice of
redemption has been given by or on behalf of the Company). 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 3.1, then, unless otherwise specified pursuant to Section 3.1 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
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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 3.1, and if at least one Holder has made such
election, then, unless otherwise specified pursuant to Section 3.1, on the
second Business Day 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 3.1, 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 3.1, 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 Unit,
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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 3.1, 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.
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(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 3.1
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
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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 (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
1.6 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 1.6 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.
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Section 3.13. APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 3.1, 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 3.1, 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).
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ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. TERMINATION OF COMPANY'S OBLIGATIONS UNDER THE
INDENTURE. (a) 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 3.5, (ii) such Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (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 10.6 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 9.3)
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
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(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, 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 6.9, 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 4.2 and
the last paragraph of Section 9.3 shall survive.
Section 4.2. APPLICATION OF TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 9.3, all money deposited with the
Trustee pursuant to Section 4.1 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
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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 4.3. APPLICABILITY OF DEFEASANCE PROVISIONS; COMPANY'S
OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.1
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 4.4 or (ii) covenant defeasance of the
Securities of or within a series under Section 4.5, then the provisions of such
Section or Sections, as the case may be, together with the provisions of
Sections 4.6 through 4.9 inclusive, with such modifications thereto as may be
specified pursuant to Section 3.1 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 4.4 (if applicable) or Section 4.5 (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 4.4. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the option specified in Section 4.3 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 4.6 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 4.7 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
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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 4.6(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 3.5, 3.6,
9.2 and 9.3 and with respect to the payment of additional amounts, if any,
payable with respect to such Securities as specified pursuant to Section
3.1(b)(16); (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 4. Subject to compliance with this
Article 4, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 4.5 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 4.5. COVENANT DEFEASANCE. Upon the Company's exercise of
the option specified in Section 4.3 applicable to this Section with respect to
any Securities of or within a series, the Company shall be released from its
obligations under Sections 7.1, 9.4 and 9.7 and, if specified pursuant to
Section 3.1, 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 4.6 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 7.1, 9.4 and 9.7 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
Sec-
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tion 5.1(3) or 5.1(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 4.6. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 4.4 or Section
4.5 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 4.3 through 4.9
inclusive and the last paragraph of Section 9.3 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 4.6(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 and principal 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 4.6(a), money in an
amount or (C) a combination thereof in an amount, sufficient, 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, 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 apper-
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taining 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 10 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 material 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 4.4, 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 4.5, 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 4.4 or the covenant defeasance
under Section 4.5 (as the case may be) have been complied with.
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(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 5.1(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 3.1.
Section 4.7. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST. Subject to the provisions of the last paragraph of Section 9.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 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, but such money need not be
segregated from other funds except to the extent required by law.
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Unless otherwise specified with respect to any Security pursuant to
Section 3.1, if, after a deposit referred to in Section 4.6(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 4.6(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 which the deposit
pursuant to Section 4.6(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 4.8. REPAYMENT TO COMPANY. 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 4.9. 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 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 and such Securities from which the Company
has been discharged or released pursuant to Section 4.4 or 4.5 shall
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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 held in trust pursuant to Section
4.7 with respect to such Securities 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 to receive such payment from the money so held in
trust.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. 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 judgment, 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 3.1(b)(16) 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
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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 any
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
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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 or Protective Life Insurance 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 or
Protective Life Insurance Company, in an involuntary case, (B) adjudges
the Company or Protective Life Insurance Company as bankrupt or insolvent,
or approves as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or
Protective Life Insurance Company, or appoints a Custodian of the Company
or Protective Life Insurance Company, or for all or substantially all of
its property, or (C) orders the liquidation of the Company or Protective
Life Insurance Company, and the order or decree remains unstayed and in
effect for 60 days; or
(7) any other Event of Default provided as contemplated by Section
3.1 with respect to Securities of that series.
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.
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Section 5.2. 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 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
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 5.7. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Section 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if
(1) default is made in the payment of any interest on any Security
or coupon, if any, when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any 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 or coupons, if any, the whole amount then due and
payable on such
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Securities for principal, premium, if any, and interest 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, 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 5.4. 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 6.9.
Section 5.5. 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 the production
thereof in any proceeding relating thereto and any recovery of judgment shall,
after provision for the
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reasonable fees and expenses of the Trustee and its counsel, be for the ratable
benefit of the Holders of the Securities in respect of which judgment was
recovered.
Section 5.6. 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.
Section 5.7. 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 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 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 8.2 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 5.8. 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 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.
Section 5.9. LIMITATION ON SUITS BY HOLDERS. No Holder of any
Security of any series or any coupons
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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, but subject to Section
9.2, the right of any Holder of a Security or coupon to receive payment of
principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest on
the Security, 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
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provided in such coupon, or, subject to Section 5.9, 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, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: to the Trustee for amounts due under Section 6.9;
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, 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 has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.13. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement
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or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, 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 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.
ARTICLE 6
THE TRUSTEE
Section 6.1. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) Except during the continuance of an Event of Default, the Trustee's duties
and responsibilities under this Indenture shall be governed by Section 315(a) of
the Trust Indenture Act.
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(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 6.2. 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 3.3, 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 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 acceptable to the Company and the Trustee (which advice, if
oral, shall be promptly confirmed in writing to the Trustee), a
certificate of an Officer or Officers delivered pursuant to Section 1.2,
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.
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(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 see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(h) 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 6.2.
Section 6.3. TRUSTEE MAY HOLD SECURITIES. The Trustee, any
Paying Agent, any Registrar or any other agent of the Company, in its 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 6.4. 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 6.5. 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
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representation as to the validity or adequacy 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 6.6. NOTICE OF DEFAULTS. If a Default occurs and is
continuing with respect to the Securities of any series and if it is known to
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 5.1(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 6.7. 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 6.8. 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
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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 6.9. 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 for, and any
predecessor Trustee, 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.
(c) The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad faith.
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(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, and interest on particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(5) or Section 5.1(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.
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 at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.12 of
this Agreement or Section 310(a) of the Trust Indenture Act and shall fail
to resign after written request therefor by the Company or by any
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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 of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 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
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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
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for
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or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee
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 such 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 1.6.
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
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surplus of at least $75,000,000. If such corporation 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
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 Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 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 of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 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
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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 3.1, 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 $25,000,000 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
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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 1.6.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
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.
THE BANK OF NEW YORK
as Trustee
By
---------------------------
as Authenticating Agent
By
---------------------------
Authorized Signatory
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. CONSOLIDATION, MERGER OR SALE OF ASSETS PERMITTED.
The Company shall not consolidate 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
merger (if other than the Company),
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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, assumes by supplemental indenture all the
obligations of the Company under the Securities and this Indenture;
(3) immediately after giving effect to the transaction no Default
or Event of Default exists; 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 all such obligations of the Company shall terminate.
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ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. 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 of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(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
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(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; 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 the 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 any ambiguity or correct any mistake, PROVIDED such
action shall not adversely affect the interests of the Holders of
Securities of any series.
Section 8.2. 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
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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, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or change the manner in which the amount of any principal thereof
or premium, if any, or interest 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 5.2, or change the Place of
Payment where or the currency in which any Securities or any premium or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date);
(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 9.2; or
(4) make any change in Section 5.7 or this 8.2(a) 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
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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 8.2 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 8.3. 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 8.4. 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 8.5. 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 8.6. 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
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authenticated and delivered by the Trustee in exchange for Outstanding
Securities including any coupons of such series.
ARTICLE 9
COVENANTS
Section 9.1. 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 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 9.2. 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
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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 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 may be 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 3.1, 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 the 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 withing 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 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
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rescission and of any change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section 3.1, the
Trustee shall initially serve as Paying Agent.
Section 9.3. 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 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 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 of any
payment of principal, premium, if any, or interest 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 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
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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 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 9.4. CORPORATE EXISTENCE. Subject to Article 7, 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 9.4 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 9.5. 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
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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 9.5, 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.
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Section 9.6. ANNUAL REVIEW CERTIFICATE; NOTICE OF DEFAULTS OR
EVENTS OF DEFAULT. (a) The Company covenants and agrees to deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, a
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 9.6, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
(b) The Company covenants and agrees to deliver to the Trustee,
within a reasonable time after the Company becomes aware of the occurrence of a
Default or an Event of Default of the character specified in Section 5.1(4)
hereof, written notice of the occurrence of such Default or Event of Default.
Section 9.7. 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 generally accepted
accounting principles.
ARTICLE 10
REDEMPTION
Section 10.1. 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 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2. 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 the 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
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Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, 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 10.3. SELECTION OF SECURITIES TO BE REDEEMED. Unless
otherwise specified as contemplated by Section 3.1, 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
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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 10.4. NOTICE OF REDEMPTION. Unless otherwise specified
as contemplated by Section 3.1, notice of redemption shall be given in the
manner provided in Section 1.6 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 be surrendered for payment
for the Redemption Price;
(6) that Securities of the series called for redemption and all
unmatured coupons, if any, apper-
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taining 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 10.5. 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 11, segregate and hold in
trust as provided in Section 9.3) 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 3.1 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
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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 10.6. 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 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 it
possessions (except as otherwise provided in Section 9.2) and, unless otherwise
specified as contemplated by Section 3.1, only upon presentation and surrender
of coupons for such interest; and PROVIDED, FURTHER, that, unless otherwise
specified as contemplated by Section 3.1, 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 3.7.
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
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<PAGE>
have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; PROVIDED, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside of the
United States (except as otherwise provided pursuant to Section 9.2) and, unless
otherwise specified as contemplated by Section 3.1, 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 10.7. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so required, 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 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 11
SINKING FUNDS
Section 11.1. 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 3.1 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
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<PAGE>
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 11.2. 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 11.2. 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 11.3. 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 by delivering and crediting Securities of that series pursuant to
Section 11.2 and will also deliver to the Trustee any Securities to be so
delivered. 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 10.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 10.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 10.6 and 10.7.
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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.
PROTECTIVE LIFE CORPORATION
By: /S/ John D. Johns
-----------------------------------
Name: John D. Johns
Title: Executive Vice President and
Chief Financial Officer
[Seal]
Attest:
/S/ John K. Wright
--------------------
Name: John K. Wright
Title: Secretary
THE BANK OF NEW YORK
By: /S/ Robert F. McIntyre
-----------------------
Name: Robert F. McIntyre
Title: Assistant Vice President
[Seal]
Attest:
/S/ Marie E. Trimboli
- - -----------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
95
<PAGE>
PROTECTIVE LIFE CORPORATION
to
THE BANK OF NEW YORK, as Trustee
_______________________________
SUPPLEMENTAL INDENTURE No. 1
Dated as of July 1, 1994
_______________________________
7.95% Senior Notes Due July 1, 2004
$75,000,000
<PAGE>
PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 1
$75,000,000
7.95% Notes Due July 1, 2004
SUPPLEMENTAL INDENTURE No. 1, dated as of July 1, 1994, from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to THE BANK
OF NEW YORK, a New York banking corporation, as trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a
Senior Indenture, dated as of June 1, 1994 (the "Indenture"), providing for the
issuance from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with respect
to any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities of
such series:
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 1 constitutes an
integral part of the Indenture.
<PAGE>
Section 1.2. For all purposes of this Supplemental Indenture No. 1:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 1; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 1.
ARTICLE 2
The Series of Senior Notes
Section 2.1. TITLE OF THE SECURITIES. There shall be a series of
Securities designated the "7.95% Senior Notes Due July 1, 2004" (the "Senior
Notes").
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF SENIOR
NOTES. The aggregate principal amount of the Senior Notes shall be limited to
$75,000,000. Each Senior Note shall be dated the date of its authentication.
Section 2.3. PRINCIPAL PAYMENT DATES. The principal on the Senior
Notes Outstanding (together with any accrued and unpaid interest thereon) shall
be payable in a single installment on July 1, 2004.
Section 2.4. INTEREST AND INTEREST RATES. The rate of interest on
each Senior Note shall be 7.95% per annum, accruing from July 1, 1994 or from
the most recent Interest Payment Date to which interest on such Senior Note has
been paid or duly provided for. Interest shall be payable on each Senior Note
semiannually on January 1 and July 1 of each year (each an "Interest Payment
Date"), commencing on January 1, 1995. The interest so payable on any Senior
Note which is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Person in whose name such Senior Note is registered at the
close of business on the December 15 or June 15, as the case may be, preceding
2
<PAGE>
such January 1 or July 1 (each a "Regular Record Date"). The interest so
payable on any Senior Note which is not punctually paid or duly provided for on
any Interest Payment Date shall forthwith cease to be payable to the Person in
whose name such Senior Note is registered on the relevant Regular Record Date,
and such defaulted interest shall instead be payable to the Person in whose name
such Senior Note is registered on the special record date or other specified
date determined in accordance with the Indenture.
Section 2.5. PLACE OF PAYMENT. The Place of Payment where the Senior
Notes may be presented or surrendered for payment, where the Senior Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Senior Notes and the Indenture
may be served shall be in the Borough of Manhattan, The City of New York, New
York, and the office or agency maintained by the Company for such purpose shall
initially be the Corporate Trust Office of the Trustee.
Section 2.6. REDEMPTION. The Senior Notes shall not be subject to
redemption at the option of the Company at any time prior to their Stated
Maturity, and the Company shall have no obligation to redeem or purchase the
Senior Notes pursuant to any sinking fund or analogous provisions or upon the
happening of any specified event or at the option of any Holder of the Senior
Notes.
Section 2.7 ADDITIONAL COVENANTS. For the benefit of the Holders
from time to time of the Senior Notes, and in addition to the covenants set
forth in Article 9 of the Indenture, the Company further covenants and agrees as
follows:
a. LIMITATIONS ON DISPOSITION OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES. The Company will not, and will not permit any Restricted
Subsidiary to, sell, assign, transfer or otherwise dispose of any shares of
the capital stock of any Restricted Subsidiary unless the entire capital
stock of such Restricted Subsidiary at the time owned by the Company and
its Restricted Subsidiaries shall be disposed of at the same time for a
consideration consisting of cash or other property which the Board of
Directors has determined to be at least equal to the fair value thereof.
Notwithstanding the foregoing provision, (i) the Company shall be permitted
to sell, assign, transfer or otherwise
3
<PAGE>
dispose of shares of the capital stock of a Restricted Subsidiary (a) to
any director (or any individual nominated to become a director) of such
Restricted Subsidiary but only to the extent ownership of such shares is
required as directors' qualifying shares for such director or individual
and (b) to any Subsidiary; and (ii) any Restricted Subsidiary shall be
permitted to sell, assign, transfer or otherwise dispose of shares of its
capital stock or the capital stock of any other Restricted Subsidiary
(a) to any director (or any individual nominated to become a director) of
such Restricted Subsidiary but only to the extent ownership of such shares
is required as directors' qualifying shares for such director or
individual, or (b) to the Company or any Subsidiary.
b. LIMITATIONS UPON CREATION OF LIENS ON CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES. The Company will not, and will not permit any Restricted
Subsidiary to, at any time directly or indirectly, issue, assume, guarantee
or permit to exist any indebtedness secured by a Lien on the capital stock
of any Restricted Subsidiary without making effective provision whereby the
Senior Notes then outstanding (and if the Company so elects, any other
indebtedness ranking on a parity with the Senior Notes) shall be equally
and ratably secured with such indebtedness as to such property so long as
such other indebtedness shall be so secured; provided, however, that the
covenant set forth in this Section 2.7(b) will not be applicable to Liens
(i) on the shares of stock of a subsidiary of a Person that is merged with
or into the Company or a Subsidiary securing debt of such Person, which
debt was outstanding prior to such merger, but only if such pledge and debt
were not incurred in anticipation of such merger, (ii) in favor of the
Company securing debt of a Restricted Subsidiary owed to the Company,
(iii) for taxes or assessments or governmental charges or levies not then
due and delinquent or the validity of which are being contested in good
faith or which are less than $5,000,000, or (iv) created by or resulting
from any litigation or legal proceeding being contested in good faith or
involving claims of less than $5,000,000.
If the Company shall hereafter be required to secure the Senior Notes
equally and ratably with any other indebtedness pursuant to this Section
2.7(b),
4
<PAGE>
(i) the Company will promptly deliver to the Trustee an Officers'
Certificate stating that the foregoing covenant has been complied with and
an Opinion of Counsel stating that in the opinion of such counsel the
foregoing covenant has been complied with and that any instruments executed
by the Company or any Restricted Subsidiary in the performance of the
foregoing covenant comply with the requirements of the foregoing covenant
and (ii) the Trustee is hereby authorized to enter into an indenture or
agreement supplemental hereto and to take such action, if any, as it may
deem advisable to enable it to enforce the rights of the Holders of the
Senior Notes.
For purposes of this Section 2.7, "Restricted Subsidiary" shall mean
any Subsidiary of the Company with assets greater than or equal to 20% of all
assets of the Company and its Subsidiaries, computed and consolidated in
accordance with generally accepted accounting principles.
For purposes of this Section 2.7, "Lien" shall mean any mortgage,
pledge, lien, charge, security interest, conditional sale or other title
retention agreement or other encumbrance of any nature whatsoever.
Section 2.8 MODIFICATION OF EVENTS OF DEFAULT. For the benefit of
the Holders from time to time of the Senior Notes, clause 4 of Section 5.1 of
the Indenture is hereby modified by deleting such clause 4 in its entirety and
replacing it with the following:
"(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 $15,000,000 or more, which default (a)
shall constitute a failure to pay any portion of the principal of such Debt
when due and payable 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
5
<PAGE>
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
mortgage, agreement, indenture 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;"
Section 2.9. DENOMINATION. The Senior Notes shall be issuable in
denominations of $1,000 and integral multiples thereof.
Section 2.10. CURRENCY. Principal and interest on the Senior Notes
shall be payable in Dollars.
Section 2.11. REGISTERED SECURITIES IN GLOBAL FORM. (a) The Senior
Notes will be issued in the form of one or more fully registered global
securities, representing the aggregate principal amount of the Senior Notes,
that will be deposited with, or on behalf of, The Depository Trust Company
("DTC"), and registered in the name of Cede & Co., the nominee of DTC.
(b) Except as provided in Section 3.5 of the Indenture, beneficial
owners of interests in the Senior
6
<PAGE>
Notes may not exchange such interests for certificated Senior Notes.
(c) In addition to the legend specified in Section 2.4 of the Indenture,
the certificate evidencing the Senior Notes shall bear the following legend:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 2.12. FORM OF NOTES. The Senior Notes shall be substantially
in the form attached as Exhibit A hereto.
Section 2.13. DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Sections 4.4 and 4.5 of the Indenture shall apply to the Senior Notes.
Section 2.14. REGISTRAR AND PAYING AGENT. The Trustee shall
initially serve as Registrar and Paying Agent.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 1, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
7
<PAGE>
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH SENIOR NOTE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
AND 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.
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed, as of the day and year first written above.
PROTECTIVE LIFE CORPORATION
By: /s/ John D. Johns
---------------------------------
Name: John D. Johns
Title: Executive Vice President
and Chief Financial Officer
By: /s/ Jerry W. DeFoor
--------------------------------
Name: Jerry W. DeFoor
Title: Vice President, Controller
and Chief Accounting Officer
[Seal]
Attest: /s/ John K. Wright
------------------------
Name: John K. Wright
Title: Secretary
THE BANK OF NEW YORK,
Trustee
By: /s/ Robert F. McIntyre
--------------------------------
Name: Robert F. McIntyre
Title: Assistant Vice President
[Seal]
Attest: /s/ Marie E. Trimboli
------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
<PAGE>
EXHIBIT A TO
SUPPLEMENTAL INDENTURE NO. 1
[FORM OF FACE OF SENIOR NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SENIOR NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES IN
CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, THIS
SENIOR NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC
OR BY A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
PROTECTIVE LIFE CORPORATION
7.95% Senior Note Due July 1, 2004
No. 1 $75,000,000
CUSIP 743 674 AA1
Protective Life Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture (as defined on the
reverse hereof)), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $75,000,000 Dollars on July 1, 2004,
and to pay interest thereon from July 1, 1994, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for. Interest
shall be payable on this Senior Note semiannually on January 1 and July 1 of
each year (each an
<PAGE>
"Interest Payment Date"), commencing on January 1, 1995 at the rate of 7.95% per
annum, until the principal hereof is paid or made available for payment;
PROVIDED that any such installment of interest, which is overdue shall bear
interest at the rate of 7.95% per annum (to the extent that the payment of such
interest shall be legally enforceable) from the dates such amounts are due until
they are paid or made available for payment, and such interest shall be payable
on demand. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full calendar month, will be calculated on the
basis of the actual number of days elapsed in such period. In the event that
any date on which interest is payable on this Senior Note is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect to 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 such date. The interest so payable on any Interest Payment Date which is
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Senior Note is registered at the close of business on
the Regular Record Date for such Interest Payment Date, which shall be the
December 15 or June 15, as the case may be, preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Person in whose name this Senior Note is
registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the person in whose name this Senior Note is
registered on the Special Record Date or other specified date determined in
accordance with the Indenture and Supplemental Indenture No. 1, referred to on
the reverse hereof.
Payment of the principal of and interest on this Senior Note will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York (which shall initially be the
Corporate Trust Office of the Trustee), in same day funds by wire transfer to an
account maintained by the Person entitled thereto as specified in the Register
of Holders of the Senior Notes, in such coin or currency of the United
2
<PAGE>
States of America as at the time of payment is legal tender for payment of
public and private debts.
Reference is hereby made to the further provisions of this Senior Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Senior
Note shall not be entitled to any benefit under the Indenture and Supplemental
Indenture No. 1 referred to on the reverse hereof or be valid or obligatory for
any purpose.
3
<PAGE>
IN WITNESS WHEREOF, Protective Life Corporation has caused this
instrument to be executed under its corporate seal.
Dated:
[Corporate Seal] PROTECTIVE LIFE CORPORATION
By:___________________________
By:___________________________
This is one of the Securities of the series described in the
within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
BY____________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SENIOR NOTE]
This Senior Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under a Senior Indenture, dated as of June 1, 1994 (herein, together
with all indentures supplemental thereto, including Supplemental Indenture No.
1, dated as of July 1, 1994, called the "Indenture"), from the Company to The
Bank of New York, (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture 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
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $75,000,000, and is
issued pursuant to Supplemental Indenture No. 1, dated as of July 1, 1994, from
the Company to the Trustee, relating to the Securities of this series (herein
called "Supplemental Indenture No. 1").
The Securities of this series shall not be subject to redemption at
the option of the Company at any time and the Company shall have no obligation
to redeem or purchase the Securities pursuant to any sinking fund.
The Indenture contains provisions for defeasance at any time of the
indebtedness on this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities 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 at least a
<PAGE>
majority in aggregate principal amount of the Securities at the time outstanding
of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive 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 Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture or to Supplemental Indenture No.
1 and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 1 shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and interest on, this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations as set
forth therein and in Supplemental Indenture No. 1, the transfer of this Security
is registrable on the Register, upon surrender of this Security for registration
of transfer at the office or agency of the Company in any place where the
principal of and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Trustee and the Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Security is registered as the owner
hereof for all purposes, whether or not the Security be overdue, and neither the
Company, the Trustee nor any such agent of the Company or the Trustee shall be
affected by notice to the contrary.
THIS SECURITY 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.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
_______________________________
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