<PAGE>
As filed with the Securities and Exchange Commission on April 15, 1994
Registration No. 33-52831
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
PROTECTIVE LIFE
CORPORATION PLC CAPITAL L.L.C.
(Exact name of registrant as (Exact name of registrant as
specified in its charter) specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction (State or other jurisdiction of
of incorporation or incorporation or organization)
organization)
95-2492236 63-1114346
(I.R.S. Employer (I.R.S. Employer Identification
Identification No.) No.)
</TABLE>
C/O DEBORAH J. LONG, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PROTECTIVE LIFE CORPORATION
P.O. BOX 2606
BIRMINGHAM, ALABAMA 35202
(205) 879-9230
(Address, including zip code and telephone number, including area
code, of registrants' principal executive offices and agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
MICHAEL W. BLAIR, ESQ. ALAN J. SINSHEIMER, ESQ.
DEBEVOISE & PLIMPTON SULLIVAN & CROMWELL
875 THIRD AVENUE 125 BROAD STREET
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10004
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as determined by market conditions, after the effective date of this
registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 15, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED APRIL [ ], 1994
[ ] PREFERRED SECURITIES
PLC CAPITAL L.L.C.
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES, SERIES A ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER SERIES A PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
---------
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A Preferred Securities"), representing preferred limited liability
company interests offered hereby are being issued by PLC Capital L.L.C. ("PLC
Capital"), a Delaware limited liability company formed by Protective Life
Corporation, a Delaware corporation ("Protective Life"), solely to issue
securities and loan the proceeds thereof to Protective Life. Accordingly, the
proceeds from the sale of Series A Preferred Securities will be loaned by PLC
Capital to Protective Life in exchange for subordinated debentures of Protective
Life (the "Series A Subordinated Debentures") having the terms described herein.
See "Terms of the Series A Preferred Securities" and "Description of Series A
Subordinated Debentures".
Holders of the Series A Preferred Securities will be entitled to receive, in
preference to holders of Common Securities (as defined herein), cumulative cash
distributions ("dividends"), at an annual rate of % of the liquidation
preference of $25 per Series A Preferred Security, accruing from the date of
original issuance and payable monthly in arrears on the last day of each
calendar month, commencing May , 1994. NO DIVIDENDS RECEIVED BY A HOLDER OF
SERIES A PREFERRED SECURITIES WILL BE ELIGIBLE FOR THE DIVIDENDS RECEIVED
DEDUCTION FOR U.S. FEDERAL INCOME TAX PURPOSES. The payment of dividends (but
only if and to the extent declared out of moneys held by PLC Capital and legally
available therefor) and payments on liquidation (but only to the extent of the
remaining assets of PLC Capital) or redemption with respect to the Series A
Preferred Securities are guaranteed by a subordinated guarantee (the
"Guarantee") of Protective Life to the extent described herein. See "Description
of the Guarantee".
The Series A Preferred Securities are redeemable, at the option of PLC
Capital, in whole or in part, at any time on or after May , 1999 and will be
redeemed, under certain circumstances, from the proceeds of any cash repayment
or permitted prepayment by Protective Life of the Series A Subordinated
Debentures, in each case at a cash redemption price of $25 per Series A
Preferred Security, plus accumulated and unpaid dividends (whether or not
declared) to the redemption date (the "Redemption Price"). In addition, at the
option of PLC Capital, following the occurrence of an Investment Company Act
Event or a Tax Event (each as defined herein), the Series A Preferred Securities
are redeemable, in whole but not in part, for cash at the Redemption Price or
exchangeable, in whole but not in part, for Series A Subordinated Debentures
having an aggregate principal amount and accrued and unpaid interest equal to
the Redemption Price. If the Series A Preferred Securities are exchanged for
Series A Subordinated Debentures, Protective Life has agreed to use its best
efforts to have the Series A Subordinated Debentures listed on the same
exchange, if any, on which the Series A Preferred Securities are listed. See
"Terms of the Series A Preferred Securities -- Redemption".
In the event of the liquidation of PLC Capital, holders of Series A
Preferred Securities will be entitled to receive for each Series A Preferred
Security a liquidation preference of $25 plus accumulated and unpaid dividends
(whether or not declared) to the date of payment before any liquidation payments
are made in respect of Common Securities. See "Terms of the Series A Preferred
Securities -- Liquidation Distribution".
------------------
FOR A DISCUSSION OF CERTAIN FACTORS TO BE CONSIDERED IN CONNECTION WITH AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING CIRCUMSTANCES UNDER
WHICH PAYMENT OF DIVIDENDS ON THE SERIES A PREFERRED SECURITIES AND INTEREST ON
THE SERIES A SUBORDINATED DEBENTURES MAY BE DEFERRED, SEE "CERTAIN INVESTMENT
CONSIDERATIONS." DURING ANY SUCH DEFERRAL HOLDERS WILL BE REQUIRED TO INCLUDE
UNPAID DIVIDENDS IN INCOME FOR FEDERAL TAX PURPOSES.
------------------
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange (the "NYSE").
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO PLC
OFFERING PRICE COMMISSIONS(1) CAPITAL(2)(3)
--------------------- --------------------- ---------------------
<S> <C> <C> <C>
Per Series A Preferred Security.......................... $25.00 (2) $25.00
Total(4)................................................. $[ ] (2) $[ ]
<FN>
- ------------------
(1) Protective Life and PLC Capital have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(2) Protective Life has agreed to pay to the Underwriters, as compensation for
their services, a commission of $ per Series A Preferred Security (or
$ in the aggregate), except that such compensation will be $ per
Series A Preferred Security sold to certain institutions, thus reducing the
aggregate compensation specified above. See "Underwriting."
(3) Expenses of the offering, estimated at $, are payable by Protective Life.
(4) [PLC Capital has granted to the Underwriters a 30-day option to purchase,
on the same terms set forth above, up to [ ] additional Series A
Preferred Securities at the Initial Public Offering Price (with additional
underwriting compensation) solely to cover over-allotments, if any. If the
option is exercised in full, the total Initial Public Offering Price,
underwriting commissions (payable by Protective Life) and proceeds to PLC
Capital will be $ , $ and $ , respectively. See "Underwriting."]
</TABLE>
------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of certificates for the Series A Preferred Securities
will be made only in book-entry form through the facilities of The Depository
Trust Company on or about May , 1994.
- ------------------
*An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
KIDDER, PEABODY & CO.
INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
-----------
The date of this Prospectus Supplement is May , 1994.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
--------------
FOR NORTH CAROLINA PURCHASERS: THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE COMMISSIONER OF INSURANCE FOR THE STATE OF NORTH CAROLINA,
NOR HAS THE COMMISSIONER OF INSURANCE RULED UPON THE ACCURACY OR ADEQUACY OF
THIS DOCUMENT.
--------------
S-2
<PAGE>
PLC CAPITAL L.L.C.
PLC Capital is a limited liability company formed under the laws of the
State of Delaware. Protective Life owns, directly and indirectly, all the
outstanding common limited liability company interests ("Common Securities") of
PLC Capital, which Common Securities are nontransferable. PLC Capital was formed
by Protective Life and a wholly-owned subsidiary solely to issue preferred or
preference limited liability company interests ("Preferred Securities") and
Common Securities (collectively, the "Membership Securities") and to lend the
proceeds thereof to Protective Life in exchange for subordinated debentures
("Subordinated Debentures"). Interest and principal on Subordinated Debentures
are intended to fund the payment of dividends and redemption and liquidation
distributions on the Membership Securities. Accordingly, PLC Capital's sole
source of cash flow is Protective Life, and PLC Capital's ability to make
dividend and other payments in respect of the Series A Preferred Securities will
be dependent on interest and principal payments by Protective Life on the Series
A Subordinated Debentures. See "Protective Life Corporation". PLC Capital will
be managed by Protective Life, in its capacity as a holder of Common Securities
(in such capacity, the "Managing Member"). PLC Capital's principal executive
offices are located at 2801 Highway 280 South, Birmingham, Alabama 35223
(Telephone: (205) 879-9230).
PLC Capital is a legal entity under the laws of the State of Delaware and is
distinct from its owners, who are known as "members". A Delaware limited
liability company provides limited liability to its members in a manner similar
to that provided to stockholders of a Delaware corporation. Therefore, unless
expressly provided in a limited liability company agreement or otherwise agreed,
under Delaware law no general liability exists for members or managers of a
limited liability company. The Amended and Restated Limited Liability Company
Agreement of PLC Capital (the "L.L.C. Agreement") provides that Protective Life
will have general liability for the debts and obligations of PLC Capital
(including tax obligations, but excluding obligations in respect of Series A
Preferred Securities) in the same manner as a general partner of a Delaware
limited partnership. Under Delaware law, members who hold Series A Preferred
Securities (other than Protective Life) will not be liable for the debts,
obligations and liabilities of PLC Capital, whether arising in contract, tort or
otherwise, solely by reason of being a member of PLC Capital (subject to any
obligation such members may have to repay any funds that may have been
wrongfully distributed to them).
PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company that owns a group of life insurance companies that
provide financial services through the production, distribution and
administration of insurance and investment products. Protective Life Insurance
Company ("Protective Life Insurance"), founded in 1907, is Protective Life's
principal operating subsidiary. Protective Life Insurance has five marketing
divisions: Agency, Group, Guaranteed Investment Contracts, Financial
Institutions, and Investment Products. Protective Life Insurance has two
additional business segments: Acquisitions and Corporate and Other. Unless the
context otherwise requires, as used in this section "Protective Life" refers to
the consolidated group of Protective Life Corporation and its subsidiaries.
Protective Life's principal executive offices are located at 2801 Highway 280
South, Birmingham, Alabama 35223 (Telephone: (205) 879-9230).
During 1993, Protective Life reported revenues of $760 million and net
income of $57 million. At December 31, 1993, Protective Life had total assets of
$5.3 billion, stockholders' equity of $361 million and life insurance inforce of
$42.5 billion. Protective Life's insurance subsidiaries generated approximately
94% of its revenues in 1993. Protective Life Insurance is currently rated A+
(Superior) by A.M. Best Company, Inc. ("A.M. Best"). A.M. Best, an independent
insurance industry rating organization, assigns fifteen letter ratings to
insurance companies, ranging from "A++ (Superior)" to "C-(Fair)." A.M. Best's
ratings are based on factors of relevance primarily to policyholders and are not
directed to the protection of investors, such as holders of the Series A
Preferred Securities. Such ratings do not apply to the Series A Preferred
Securities offered hereby.
S-3
<PAGE>
AGENCY DIVISION
Since 1983, the Agency Division has utilized a distribution system based on
experienced independent personal producing general agents who are recruited by
regional sales managers. At December 31, 1993, there were 26 regional sales
managers located throughout the United States and approximately 12,850
independent personal producing general agents, brokers, and other agents under
contract. In 1993 the Division began distributing certain insurance products
through securities broker-dealers.
Current marketing efforts in the Agency Division are directed toward
universal life products and products designed to compete in the term
marketplace. Protective Life currently emphasizes back-end loaded universal life
policies which reward the continuing policyholder and which are designed to
maintain the persistency of its universal life business. The products designed
to compete in the term marketplace are term-like policies with guaranteed level
premiums for the first 15 years which provide a competitive net cost to the
insured.
GROUP DIVISION
Protective Life markets its group insurance products primarily in the
southeastern and southwestern United States using the services of brokers who
specialize in group products. Sales offices in Alabama, Florida, Georgia,
Illinois, Missouri, North Carolina, Ohio, Oklahoma, Tennessee and Texas are
maintained to serve these brokers. The Group Division offers substantially all
forms of group insurance customary in the industry, making available complete
packages of life and accident and health insurance to employers. The life and
accident and health insurance packages include hospital and medical coverages as
well as dental and disability coverages. To address rising health care costs,
the Group Division provides cost containment services such as utilization review
and catastrophic case management. Group policies are directed primarily at
employers and associations with between 25 and 1,000 employees.
The group accident and health insurance business is generally considered to
be cyclical. Profits rise or fall as competitive forces allow or prevent rate
increases to keep pace with changes in group health medical costs. Protective
Life is placing marketing emphasis on other specialty health insurance products
which are less affected by medical cost inflation, including dental insurance
policies, hospital indemnity policies and individual cancer insurance policies.
Sales of both the cancer and the dental products have expanded rapidly and now
represent a substantial portion of the Group Division's premiums and operating
income. It is anticipated that a significant part of the growth in Protective
Life's health insurance premium income in the next several years will be from
such specialty products.
In October 1993, the Clinton Administration submitted to Congress draft
legislation proposing major reform of the nation's basic health care system.
While it is impossible to predict the specifics of any reforms that may emerge
from the legislative process, because of Protective Life's focus on specialty
health products such as dental and cancer coverage, Protective Life does not
believe that such basic health care legislation will have a material adverse
effect on its business.
FINANCIAL INSTITUTIONS DIVISION
The Financial Institutions Division specializes in marketing insurance
products through commercial banks, savings and loan associations, and mortgage
bankers. It markets an array of life and health products designed to repay
consumer and mortgage loans upon the occurrence of certain covered events. The
majority of these policies cover consumer and mortgage loans made by financial
institutions located primarily in the southeastern United States. The Financial
Institutions Division also markets life and health products through the consumer
finance industry and through automobile dealerships. The Division markets
through both employee field representatives and brokers. The Financial
Institutions Division also offers certain products through direct mail
solicitation to customers of financial institutions.
INVESTMENT PRODUCTS DIVISION
The Investment Products Division manufactures, sells, and supports annuity
products. These products are sold through the Agency Division, financial
institutions, and broker-dealer distribution
S-4
<PAGE>
channels. The Investment Products Division was formed to respond to an increased
consumer demand for savings vehicles. The Investment Products Division also
includes Protective Equity Services, Inc. ("PES"), a securities broker-dealer
subsidiary. Through PES, licensed members of Protective Life Insurance's field
force can sell stocks, bonds, mutual funds, and other financial instruments that
may be manufactured or issued by companies other than Protective Life Insurance.
GUARANTEED INVESTMENT CONTRACTS DIVISION
In 1989, Protective Life Insurance began selling guaranteed investment
contracts ("GICs"). Protective Life Insurance's GICs are contracts, generally
issued to a 401(k) or other retirement savings plan, which guarantee a fixed
return on deposits with such a plan for a specified period and often provide
flexibility for withdrawals, in keeping with the benefits provided by the plan.
Protective Life Insurance also offers a related product which is purchased
primarily as a temporary investment vehicle by the trustees of escrowed
municipal bond proceeds.
GIC sales are affected by the claims paying and financial strength ratings
of Protective Life Insurance. Any downgrade in such ratings of Protective Life
Insurance could have an adverse effect on its ability to sell GICs.
ACQUISITIONS DIVISION
Protective Life actively seeks to acquire blocks of insurance policies.
These acquisitions may be accomplished through acquisitions of companies or
through the assumption or reinsurance of policies. Reinsurance transactions may
be made with court-administered insolvent companies or with companies otherwise
divesting themselves of blocks of business. Generally, such acquisitions do not
include the acquisition of an active sales force. Blocks of policies acquired
through the Acquisitions Division are administered as "closed" blocks; I.E., no
new policies are sold. Therefore, the amount of insurance in force for a
particular block of acquired business is expected to decline with time due to
lapses and deaths of the insureds. The experience of Protective Life has been
that acquired or reinsured business can be administered more efficiently by
Protective Life than by previous management or court administrators.
CORPORATE AND OTHER
The Corporate and Other segment consists of several small insurance lines of
business and the operations of several small noninsurance subsidiaries.
INVESTMENT PORTFOLIO
At December 31, 1993, Protective Life had approximately $4.8 billion of
invested assets. Protective Life seeks to maintain a conservative investment
portfolio, yet deliver attractive returns to its policyholders and shareholders.
The portfolio of invested assets is managed to support the liabilities of
Protective Life's lines of business. Protective Life invests its assets giving
consideration to such factors as liquidity needs, investment quality, investment
return, matching of assets and liabilities, and the composition of the portfolio
by asset type and credit exposure. At year end 1993, Protective Life's invested
assets consisted of the following: 64% in fixed maturity investments (corporate
bonds, mortgage-backed securities, and bank loan participations); 30% in
commercial mortgages; 3% in policy loans; and 3% in other assets including
short-term investments. At December 31, 1993, Protective Life's consolidated
holdings of unrated or below investment grade fixed maturity investments
amounted to 6.3% of its fixed maturity investments. In the early 1990's the life
insurance industry attracted intense scrutiny due to mortgage loan problems.
Many of these mortgage loan problems related to loans made on speculative,
multi-tenant office buildings and on hotels -- market segments to which
Protective Life, despite the investment of a large percentage of its portfolio
in commercial mortgages, has little exposure. At December 31, 1993, loans to
shopping centers anchored by K-Mart, Food Lion and Wal-Mart constituted 7%, 5%
and 4%, respectively, of Protective Life's commercial mortgage portfolio.
S-5
<PAGE>
CERTAIN INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters.
DEPENDENCE ON SERIES A SUBORDINATED DEBENTURE PAYMENTS
The proceeds from the sale of the Series A Preferred Securities offered
hereby, together with the capital contributions made in respect of the Common
Securities, will be loaned by PLC Capital to Protective LIfe in exchange for
Series A Subordinated Debentures of Protective Life. After giving effect
thereto, PLC Capital will have no assets other than such Series A Subordinated
Debentures. Thus, payments by PLC Capital on the Series A Preferred Securities
will be completely dependent on payments by Protective Life on the Series A
Subordinated Debentures, which in turn may be affected by the other matters
referred to below and elsewhere in this Prospectus Supplement and the
Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Protective Life has the right under the Series A Subordinated Debentures to
extend interest payment periods to up to 60 months, and, as a consequence,
monthly dividends on the Series A Preferred Securities may be deferred (but will
continue to accumulate, together with additional dividends on any such
accumulated but unpaid dividends at the dividend rate) by PLC Capital during any
such extended interest payment period. In the event that Protective Life
exercises this right, Protective Life may not declare dividends on or
repurchase, except as described herein, any shares of its capital stock. See
"Description of the Series A Subordinated Debentures -- Interest".
TAX CONSEQUENCES OF EXTENDED INTEREST PERIOD
Should an extended interest payment period occur, PLC Capital will continue
to accrue income for U.S. federal income tax purposes which will be allocated,
but not distributed, to record holders of Series A Preferred Securities. As a
result, such holders will include such amounts in income for U.S. federal income
tax purposes in advance of the receipt of cash, and any such holders who dispose
of Series A Preferred Securities prior to the record date for payment of
dividends following such extended period will therefore have included such
amounts in income but will not have received the cash dividends related thereto.
See "Certain Federal Tax Considerations -- Potential Extension of Payment
Period" and "-- Exchange of Series A Preferred Securities for Series A
Subordinated Debentures".
SUBORDINATION OF SERIES A SUBORDINATED DEBENTURES
Protective Life's obligations under the Series A Subordinated Debentures are
subordinate and junior in right of payment to all Senior Indebtedness of
Protective Life. See "Description of the Series A Subordinated Debentures --
Subordination". At ______, 1994, Protective Life had approximately $___ million
of outstanding indebtedness, all of which would rank senior to the Series A
Subordinated Debentures. The terms of the Series A Preferred Securities and the
Series A Subordinated Debentures do not limit Protective Life's ability to incur
additional indebtedness, including indebtedness that ranks senior to the Series
A Subordinated Debentures.
HOLDING COMPANY STRUCTURE
Protective Life is a holding company that derives substantially all of its
operating income and cash flow from its insurance company subsidiaries.
Protective Life's ability to pay principal and interest on Senior Indebtedness
and the Series A Subordinated Debentures is affected by the ability of its
insurance company subsidiaries to declare and distribute dividends and to make
payments on surplus notes (I.E., deeply subordinated inter-company notes owed by
insurance company subsidiaries to Protective Life that are treated as equity
capital for statutory accounting purposes), both of which may be limited by
regulatory restrictions and, in the case of payments on surplus notes, by
certain financial covenants. Protective Life's cash flow is also dependent on
revenues from investment, data processing, legal and management services
rendered to its subsidiaries. Insurance company subsidiaries of Protective Life
are subject to various state statutory and regulatory restrictions, applicable
to insurance companies generally, that limit the amount of cash dividends, loans
and advances that those subsidiaries may pay
S-6
<PAGE>
to Protective Life. Under Tennessee insurance laws, Protective Life Insurance
may generally only pay dividends to Protective Life out of its unassigned
surplus as reflected in its statutory financial statements filed in that State.
In addition, the Tennessee Commissioner of Insurance must approve (or not
disapprove within 30 days of notice) payment of an "extraordinary" dividend from
Protective Life Insurance, which generally under Tennessee insurance laws is a
dividend that exceeds, together with all dividends paid by Protective Life
Insurance within the previous 12 months, the greater of (I) 10% of Protective
Life Insurance's surplus as regards policyholders at the preceding December 31
or (II) the net gain from operations of Protective Life Insurance for the 12
months ended on such December 31. The maximum amount that would qualify as
ordinary dividends to Protective Life by its insurance subsidiaries in 1994 is
estimated to be $57 million. No assurance can be given that more stringent
restrictions will not be adopted from time to time by states in which Protective
Life's insurance subsidiaries are domiciled, which restrictions could have the
effect, under certain circumstances, of significantly reducing dividends or
other amounts payable to Protective Life by such subsidiaries without
affirmative prior approval by state insurance regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of a subsidiary of Protective Life, all creditors of such
subsidiary, including holders of life and health insurance policies, would be
entitled to payment in full out of the assets of such subsidiary before
Protective Life, as shareholder or holder of surplus notes, would be entitled to
any payment, and thus such creditors would have to be paid in full before the
creditors of Protective Life (including the holders of the Series A Subordinated
Debentures) would be entitled to receive any payment from the assets of such
subsidiary.
REDEMPTION OR EXCHANGE UPON OCCURRENCE OF CERTAIN TAX EVENTS
Protective Life and PLC Capital have become aware that the Department of the
Treasury is studying the federal income tax treatment of the interest payable on
obligations similar to the Series A Subordinated Debentures. While Protective
Life and PLC Capital are unable to predict the outcome of this matter, if the
Department of the Treasury issues an official interpretation or regulation and
as a result there is more than an insubstantial increase in the risk that
interest on the Series A Subordinated Debentures is not deductible by Protective
Life, the Series A Preferred Securities would be subject to redemption or
exchange, at the option of Protective Life. See "Terms of the Series A Preferred
Securities -- Redemption" and "Certain Federal Tax Considerations -- Exchange of
Series A Preferred Securities for Series A Subordinated Debentures".
REDUCTION OF PAYMENTS TO NON-U.S. HOLDERS DUE TO WITHHOLDING REQUIREMENTS
In the event that any U.S. taxes, duties, assessments or other governmental
charges are required to be deducted or withheld from any payments to non-U.S.
holders of the Series A Preferred Securities, neither Protective Life nor PLC
Capital would be required to pay any additional amounts to such holders and,
therefore, any such taxes or charges would reduce the amounts received by such
holders.
S-7
<PAGE>
CAPITALIZATION OF PROTECTIVE LIFE
The following table sets forth the unaudited summary capitalization of
Protective Life and its consolidated subsidiaries at December 31, 1993 and as
adjusted to give effect to the sale of the Series A Preferred Securities offered
hereby and the application of the proceeds therefrom as described under "Use of
Proceeds" herein. The table should be read in conjunction with Protective Life's
consolidated financial statements and notes thereto and other financial data
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1993
-------------------------
ACTUAL AS ADJUSTED
----------- ------------
(IN THOUSANDS)
<S> <C> <C>
Short-term debt
Current portion of long-term debt.................................................... $ 9,520 $
----------- ------------
Total short-term debt.............................................................. 9,520
----------- ------------
----------- ------------
Long-term debt
Notes payable to banks............................................................... 137,500
Mortgage and other notes payable less current portion................................ 98
----------- ------------
Total long-term debt............................................................... 137,598
Series A Preferred Securities of PLC Capital (minority interest in consolidated
subsidiary)........................................................................... --
Stockholders' equity
Preferred Stock ($1 par value shares authorized: 850,000; issued: none).............. --
Junior Participating Cumulative Preferred Stock ($1 par value shares authorized:
150,000; issued: none).............................................................. --
Common equity ($.50 par value shares authorized: 20,000,000; issued and outstanding:
13,693,244)......................................................................... 360,733 360,733
----------- ------------
Total stockholders' equity......................................................... 360,733 360,733
----------- ------------
Total capitalization............................................................. $ 498,331 $
----------- ------------
----------- ------------
</TABLE>
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities (together
with capital contributed in respect of Common Securities) will be loaned to
Protective Life in exchange for Series A Subordinated Debentures. Protective
Life will use the net proceeds of such loans (after paying commissions to the
underwriters and other offering expenses) to repay bank borrowings under a
variable rate term note and a three year revolving line of credit bearing
interest at rates ranging from 4.0% to 4.4% at December 31, 1993.
S-8
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF PROTECTIVE LIFE CORPORATION
The following selected financial information for the years ended as of
December 31, 1993, 1992, 1991, 1990 and 1989 has been derived from previously
published audited consolidated financial statements of Protective Life, prepared
in accordance with generally accepted accounting principles, which have been
examined and reported upon by Coopers & Lybrand, independent auditors. The
selected financial information should be read in conjunction with, and is
qualified in its entirety by reference to, the consolidated financial statements
from which it has been derived and the accompanying notes thereto incorporated
by reference herein.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------
1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Premiums and Policy Fees............................. $ 370,758 $ 323,136 $ 273,975 $ 248,448 $ 236,830
Net Investment Income................................ 362,130 284,069 233,502 136,995 82,453
Realized Investment Gains (Losses)................... 5,054 (14) (3,085) (3,154) 209
Other Income......................................... 21,695 18,835 11,556 8,197 5,231
---------- ---------- ---------- ---------- ----------
Total Revenues....................................... 759,637 626,026 515,948 390,486 324,723
Benefits and Expenses................................ 674,593 566,079 464,245 350,204 292,437
---------- ---------- ---------- ---------- ----------
Income Before Income Tax............................. 85,044 59,947 51,703 40,282 32,286
Net Income........................................... 56,550(1) 41,420(2) 35,789 28,133 21,793
PRE-TAX INCOME BY BUSINESS SEGMENT
Agency............................................... 20,064(3) 12,985 12,087 9,877 3,703
Group................................................ 10,394 7,731 8,146 6,193 6,059
Financial Institutions............................... 8,196 5,411 4,447 3,120 2,964
Investment Products.................................. 2,931(3) 4,601 391 (1,351) (1,423)
Guaranteed Investment Contracts...................... 25,405 14,533 9,933(4) 2,919(4) (289)
Acquisitions......................................... 29,845(3) 20,031 23,494 17,659 17,736
Corporate and Other.................................. (13,667)(3),(4)(3,896(4) (4,110)(4) 3,624 3,327
Unallocated and Realized Investment Gains............ 1,876 (1,449) (2,685) (1,759) 209
---------- ---------- ---------- ---------- ----------
Total Pre-tax Income................................. 85,044 59,947 51,703 40,282 32,286
BALANCE SHEET DATA
Invested Assets:
Fixed Maturities................................... 3,051,292(5) 2,185,015 1,541,991 1,035,176 421,165
Equity Securities.................................. 40,596 26,588 31,235 23,222 20,657
Mortgage Loans on Real Estate...................... 1,407,744 1,178,164 985,159 666,150 388,913
Investment Real Estate............................. 22,061 17,020 22,240 16,713 10,651
Policy Loans....................................... 141,135 117,873 120,527 127,253 107,594
Other Long-term Investments........................ 20,191 19,618 29,259 34,676 20,527
Short-term Investments............................. 83,692 52,792 65,344 126,046 36,412
---------- ---------- ---------- ---------- ----------
Total Invested Assets................................ 4,766,711 3,597,070 2,795,755 2,029,236 1,005,919
Total Assets......................................... 5,316,005 4,006,667 3,120,290 2,331,197 1,232,280
Total Debt........................................... 147,118 88,248 57,579 81,145 27,831
Total Liabilities.................................... 4,955,272 3,725,267 2,868,545 2,108,871 1,020,611
Stockholders' Equity................................. 360,733(5) 281,400 251,745 222,326 211,669
PER SHARE DATA
Net Income........................................... 4.13(1) 3.03(2) 2.62 2.07 1.58
Stockholders' Equity................................. 26.34(5) 20.56 18.44 16.29 15.50
STATUTORY FINANCIAL DATA (6)
Net Income........................................... 53,138 32,426 35,196 25,335 20,483
Total Capital and Surplus............................ $ 265,075 $ 208,476 $ 189,473 $ 167,325 $ 150,636
</TABLE>
- ------------------------------
1. Reduced by one-time adjustment of income tax expense of $1,261 or $.09 per
share due to increase in the corporate income tax rate from 34% to 35%.
2. Reflects the adoption of SFAS No. 106, "Employers' Accounting For
Postretirement Benefits Other Than Pensions," which decreased net income
$1,053 or $.08 per share.
3. In 1993 Protective Life changed the method used to apportion net investment
income within Protective Life. The change resulted in increased income
attributable to the Agency, Investment Products, and Acquisitions business
segments of $3,000, $2,000 and $2,600, respectively, while decreasing income
of the Corporate and Other segment.
4. Pre-tax income for the Guaranteed Investment Contracts business segment has
not been reduced by pre-tax minority interest of $1,631 in 1991 and $1,326
in 1990. Pre-tax income for the Corporate and Other business segment has not
been reduced by pre-tax minority interest of $19 in 1993 and $90 in 1992 and
1991.
5. Reflects the adoption of SFAS No. 115, "Accounting For Certain Investments
in Debt and Equity Securities." The effect of adopting SFAS No. 115 was to
increase fixed maturities by $65,622, decrease deferred policy acquisition
costs by $12,450, increase the liability for deferred income Taxes by
$18,610, and increase Stockholders' Equity by $34,562 or $2.52 per share.
6. Of Protective Life's insurance subsidiaries prepared in conformity with
statutory accounting practices prescribed or permitted by insurance
regulatory authorities. Statutory accounting practices differ in some
respects from generally accepted accounting principles. For example, (a)
acquisition costs of obtaining new businesses are expensed as incurred, (b)
benefit liabilities are computed using methods statutorily mandated and are
not adjusted for actual experience, (c) income tax expense is computed on
taxable earnings and (d) furniture and equipment, agents' debit balances and
prepaid expenses are charged directly against surplus rather than reported
as assets.
S-9
<PAGE>
TERMS OF THE SERIES A PREFERRED SECURITIES
GENERAL
Preferred Securities of PLC Capital may be issued from time to time in one
or more series, as described in the accompanying Prospectus, with such dividend
rights, liquidation preferences, redemption or exchange provisions, voting
rights and other rights, powers and duties as are established by the L.L.C.
Agreement of PLC Capital and a written action (the "Action") taken, or to be
taken, by the Managing Member to amend and supplement the L.L.C. Agreement
(which Actions, when taken, constitute an amendment and supplement to, and
become a part of, the L.L.C. Agreement). The Series A Preferred Securities
constitute one such series of Preferred Securities of PLC Capital. The summary
of certain terms of the Series A Preferred Securities set forth below does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, the L.L.C. Agreement (including the Action establishing the
rights, powers and duties relating to the Series A Preferred Securities, a copy
of which Action will have been filed with the Securities and Exchange Commission
(the "Commission") at or prior to the time of the sales of the Series A
Preferred Securities).
DIVIDENDS
Cumulative dividends on the Series A Preferred Securities will accumulate at
a rate per annum of % on the liquidation preference thereof (or $ per
Series A Preferred Security per annum) from the date of original issuance
thereof and will be payable monthly in arrears on the last day of each calendar
month of each year, commencing May , 1994, when, as and if declared by the
Managing Member to holders of record on the record date therefor. Payment of
dividends is limited to the amount of funds held by PLC Capital and legally
available therefor. See "Description of the Series A Subordinated Debentures".
Dividends will be computed on the basis of twelve 30-day months and a 360-day
year and, for any dividend period shorter than a full calendar month, will be
computed on the basis of the actual number of calendar days elapsed in such
period.
Dividends declared on the Series A Preferred Securities will be payable to
the record holders thereof as they appear on the register for the Series A
Preferred Securities on the relevant record dates, which will be one Business
Day prior to the relevant payment dates. Subject to any applicable fiscal or
other laws and regulations, each such payment will be made as described under
"Book-Entry-Only Issuance; The Depository Trust Company" below. In the event
that any date on which dividends are payable on the Series A Preferred
Securities is not a day on which banks in The City of New York are open for
business (a "Business Day"), then payment of the dividend payable on such date
may be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
Under the L.L.C. Agreement, dividends on the Series A Preferred Securities
must be declared by the Managing Member in any calendar year or portion thereof
to the extent that the Managing Member reasonably anticipates that at the time
of payment it will have, and must be paid by PLC Capital to the extent that at
the time of proposed payment it has, (x) funds legally available for the payment
of such dividends and (y) cash on hand sufficient to permit such payment. It is
anticipated that such funds will be derived from payments by Protective Life of
interest on the Series A Subordinated Debentures.
Under the terms of the Series A Subordinated Debentures, so long as
Protective Life is not in default in the payment of interest on the Series A
Subordinated Debentures, Protective Life shall have the right at any time to
extend the interest payment period to the next interest payment date by a period
(not to exceed 60 months from the last date on which interest was paid in full)
at the end of which Protective Life shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the Series A
Subordinated Debentures to the extent permitted by applicable law). During any
such extended interest period, or at any time during which there is an uncured
Default or Event of Default (each as hereinafter defined) under the Series A
Subordinated Debentures, Protective Life shall not pay any dividends on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its
S-10
<PAGE>
shares of capital stock or make any guarantee payments with respect to the
foregoing (other than (a) redemptions or purchases pursuant to Protective Life's
Share Purchase Rights Plan described under "Description of Capital Stock of
Protective Life -- Junior Preferred Stock" in the Prospectus, or any successor
to such Plan, and (b) payments under any guarantee of the Series A Preferred
Securities or other Preferred Securities ranking PARI PASSU with the Series A
Preferred Securities). Protective Life is required to give PLC Capital not less
than five Business Days' prior notice of its selection of such extended interest
payment period. See "Description of the Series A Subordinated Debentures."
If dividends can be paid only in part on the Series A Preferred Securities
in any calendar year or portion thereof as a result of the lack of sufficient
funds legally available for the payment of dividends, then such partial
dividends shall be paid on the respective dividend payment dates on a pro rata
basis to holders of such Series A Preferred Securities. If any dividends on the
Series A Preferred Securities are not paid in full on any dividend payment date,
additional dividends will accrue on any accrued and unpaid dividends at the
dividend rate for the Series A Preferred Securities specified above.
Except as described herein, holders of the Series A Preferred Securities
will have no other right to participate or share in the profits or assets of PLC
Capital.
CERTAIN RESTRICTIONS ON PLC CAPITAL
If dividends have not been paid in full on the Series A Preferred
Securities, PLC Capital shall not:
(i) pay, or declare and set aside for payment, any dividends on any
other Preferred Securities ranking PARI PASSU with the Series A Preferred
Securities as regards participation in profits of PLC Capital ("Dividend
Parity Securities"), unless such dividends are paid, declared or set aside
for payment on the Dividend Parity Securities and the Series A Preferred
Securities on a pro rata basis on the date such dividends are paid, so that
(x) (A) The aggregate amount of dividends paid on the Series A
Preferred Securities bears to (B) the aggregate amount of dividends paid
on such Dividend Parity Securities the same ratio as
(y) (A) the aggregate of all accrued and unpaid dividends in respect
of the Series A Preferred Securities bears to (B) the aggregate of all
accrued and unpaid dividends in respect of such Dividend Parity
Securities;
(ii) pay, or declare and set aside for payment, any dividends on any
Common Securities or limited liability company interests of PLC Capital
ranking junior to the Series A Preferred Securities as to dividends
("Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any Dividend Parity
Securities or Dividend Junior Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clauses (i) and (ii), such payment,
and in the case of clause (iii), the date of such redemption, purchase or
acquisition. As of the date of this Prospectus Supplement, there are no Dividend
Parity Securities outstanding.
PLC Capital may not engage in any business or activity other than issuing
its Common Securities, the Series A Preferred Securities and other series of
Preferred Securities having terms generally consistent with those of the Series
A Preferred Securities (other than dividend rate, and other than changes that
would not adversely affect the ability of PLC Capital to make full and timely
dividend payments or payments upon liquidation to the holders of the Series A
Preferred Securities), lending the proceeds thereof to Protective Life in return
for Subordinated Debentures in an aggregate principal amount equal to the amount
of such loan, bearing interest at a rate at least equal to the dividend rate on
Preferred Securities of such series and otherwise having terms generally
consistent with those of the Series A Subordinated Debentures (other than
changes that would not adversely affect the ability of PLC Capital to make full
and timely dividend payments or payments upon liquidation to the holders of the
Series A
S-11
<PAGE>
Preferred Securities), redeeming its Preferred Securities in accordance with the
terms thereof and engaging in activities incidental or conducive to the
foregoing. PLC Capital may not consolidate or merge with, or convey, transfer or
lease its properties and assets substantially as an entirety to, any corporation
or other body. Notwithstanding the foregoing, PLC Capital may, without the
consent of the holders of any series of Preferred Securities, consolidate or
merge with or into any Delaware limited liability company or "other business
entity" (within the meaning of the Delaware Limited Liability Company Act)
formed under the laws of any state of the United States; PROVIDED that (i) such
successor entity expressly assumes all of the obligations of PLC Capital under
each series of Preferred Securities then outstanding, (ii) Protective Life
expressly acknowledges such successor as the holder of the Subordinated
Debentures pertaining to each series of Preferred Securities then outstanding,
(iii) such merger or consolidation does not cause any series of Preferred
Securities then outstanding to be delisted by any national securities exchange
or other organization on which such Preferred Securities are then listed, (iv)
such merger or consolidation does not cause the Series A Preferred Securities to
be downgraded by any "nationally recognized statistical rating organization" (as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act), (v) such merger or consolidation does not adversely affect the
powers, preferences and other special rights of holders of Series A Preferred
Securities and (vi) prior to such merger or consolidation Protective Life has
received an opinion of nationally recognized independent counsel experienced in
such matters to the effect that (w) holders of outstanding Series A Preferred
Securities will not recognize any gain or loss for federal income tax purposes
as a result of such merger or consolidation, (x) such successor entity will be
treated as a partnership for federal income tax purposes and such merger or
consolidation will not otherwise cause a Tax Event to occur, (y) following such
merger or consolidation Protective Life and such successor entity will be in
compliance with the Investment Company Act of 1940, as amended (the "1940 Act"),
without registering thereunder as an investment company and (z) such merger or
consolidation will not adversely affect the limited liability of holders of
Series A Preferred Securities.
The Managing Member is authorized to conduct its affairs and to operate PLC
Capital in such a way that PLC Capital would not be deemed to be an "investment
company" required to be registered under the 1940 Act or taxed as a corporation
for federal income tax purposes and so that any loans made by PLC Capital to
Protective Life will be treated as indebtedness for federal income tax purposes.
In this connection, the Managing Member is (a) authorized to take any action
that (i) is not inconsistent with applicable law, the Certificate of Formation
of PLC Capital and the L.L.C. Agreement, (ii) does not adversely affect the
holders of Series A Preferred Securities and (iii) the Managing Member
determines in its sole discretion to be necessary or desirable for such purposes
and (b) instructed not to take affirmative actions, other than as contemplated
by the L.L.C. Agreement, that would cause PLC Capital to be deemed such an
"investment company" or taxed as a corporation for federal income tax purposes
or would cause any such loans not to be treated as indebtedness for federal
income tax purposes.
REDEMPTION
MANDATORY REDEMPTION UPON REPAYMENT OF SERIES A SUBORDINATED DEBENTURES AT
MATURITY
The proceeds from any repayment at maturity or permitted prepayment of any
Series A Subordinated Debentures (or any new Subordinated Debentures replacing
the Series A Subordinated Debentures as contemplated by the proviso to this
sentence) shall be applied to redeem the Series A Preferred Securities for cash
at the Redemption Price, PROVIDED that all or any portion of the principal
amount of Series A Subordinated Debentures repaid by Protective Life at maturity
may be reloaned to Protective Life, and not used for such redemption, if such
new loan is evidenced by Subordinated Debentures and, at the time of the
issuance of the new Subordinated Debentures that will evidence such new loan,
and as determined in the judgment of the Managing Member and its financial
advisor, selected by the Managing Member and who shall not be affiliated with
the Managing Member and shall be among the 30 largest investment banking firms,
measured by total capital, in the United States at the time, (i) Protective Life
is not the subject of a pending case under the United States Bankruptcy Code,
(ii) Protective Life is not in default on any Subordinated Debentures, (iii)
Protective Life has timely made all required monthly payments of interest on all
Subordinated Debentures for the immediately preceding 18 months, (iv) PLC
S-12
<PAGE>
Capital is not in arrearage on payments of dividends on any Preferred
Securities, (v) Protective Life is expected to be able to make timely payment of
principal and interest on such new loan, (vi) such new loan is being made on
terms, and under circumstances, that are no less favorable to PLC Capital than
those that a lender would require for a similar loan to an unrelated party,
(vii) such new loan is being made at a rate of interest at least equal to or
greater than the amount of monthly dividend payments required in respect of the
Series A Preferred Securities, (viii) such new loan is being made for a fixed
term that is consistent with market circumstances and Protective Life's
financial condition, (ix) the senior unsecured long-term debt of Protective Life
is rated not less than BBB-(or the equivalent) by Standard & Poor's Corporation
or Baa3 (or the equivalent) by Moody's Investors Services, Inc. (or if either of
such rating organizations is not then rating Protective Life's senior unsecured
long-term debt, the equivalent of such rating by any other "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act) and any
subordinated long-term debt of Protective Life or, if there is no such debt then
outstanding, the Series A Preferred Securities of such series, are rated not
less than BBB-(or the equivalent) by Standard & Poor's Corporation or Baa3 (or
the equivalent) by Moody's Investors Service, Inc. or the equivalent of either
such rating by any other "nationally recognized statistical rating
organization", (x) the Subordinated Debentures evidencing such new loan will not
be convertible or exchangeable into any equity interest of or in Protective Life
or any of its affiliates; (xi) such new loan shall not pay any contingent
interest or other interest determined by reference to, or otherwise participate
in, the earnings or profits of Protective Life or any of its affiliates; (xii)
the interest payable on such new loan will not exceed 175% of the dividend rate
on the Series A Preferred Securities; and (xiii) in any event, no new loan shall
have a final maturity before the 50th anniversary of the original issuance of
the Series A Preferred Securities. If, at the maturity of the Series A
Subordinated Debentures, an amount less than the entire principal amount of the
Series A Subordinated Debentures is reloaned to Protective Life, the amount of
such principal not so reloaned shall be used to effect a partial redemption of
the Series A Preferred Securities, provided that, if a partial redemption would
result in a delisting of the Series A Preferred Securities, no amount of
principal may be reloaned to Protective Life, and the Series A Preferred
Securities shall be redeemed in whole. In the event that fewer than all the
outstanding Series A Preferred Securities are to be redeemed, the Series A
Preferred Securities to be redeemed will be selected as described under
"Book-Entry-Only Issuance; The Depository Trust Company" below.
__OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable for cash, at the option of
PLC Capital, in whole or in part, at any time and from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice to the holders
of the Series A Preferred Securities, at the Redemption Price. In the event that
fewer than all the outstanding Series A Preferred Securities are to be so
redeemed, the Series A Preferred Securities to be redeemed will be selected as
described under "Book-Entry-Only Issuance; The Depository Trust Company" below.
PLC Capital will not redeem fewer than all the outstanding Series A Preferred
Securities unless all accumulated and unpaid dividends have been paid on all
Series A Preferred Securities for all monthly dividend periods terminating on or
prior to the date of redemption. In addition, if a partial redemption would
result in a delisting of the Series A Preferred Securities, PLC Capital may only
redeem the Series A Preferred Securities in whole.
At any time after the issuance of the Series A Preferred Securities, at the
option of PLC Capital (with the prior written consent of Protective Life as
borrower under the Series A Subordinated Debentures), the Series A Preferred
Securities may be redeemed, in whole (but not in part), upon not less than 30
nor more than 60 days' notice given within 90 days after the applicable change
in U.S. law or regulation or written change in interpretation of U.S. law or
regulation referred to below, for cash at the Redemption Price or in exchange
for Series A Subordinated Debentures having, at the time of exchange, (a) an
aggregate principal amount equal to $25 per Series A Preferred Security so
exchanged and (b) accrued and unpaid interest equal to any accumulated and
unpaid dividends (whether or not declared) at the date fixed for exchange on the
Series A Preferred Securities so exchanged if PLC Capital or Protective Life
shall have obtained an opinion of nationally recognized independent counsel
experienced in such
S-13
<PAGE>
matters to the effect that, as a result of a change in U.S. law or regulation on
or after __________, 1994, or a written change in interpretation or application
of U.S. law or regulation, by any legislative body, court or governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination) on or after
such date, PLC Capital may be considered an "investment company" under the 1940
Act (an "Investment Company Act Event").
In addition, at any time after the issuance of the Series A Preferred
Securities upon not less than 30 nor more than 60 days' notice given within 90
days after the applicable change in U.S. law or regulation or written change in
interpretation of U.S. law or regulation referred to below, Protective Life may
cause PLC Capital to redeem the Series A Preferred Securities in exchange for
Series A Subordinated Debentures having, at the time of exchange, (a) an
aggregate principal amount equal to $25 per Series A Preferred Security so
exchanged and (b) accrued and unpaid interest equal to accumulated and unpaid
dividends (whether or not declared) at the date fixed for exchange on the Series
A Preferred Securities so exchanged if Protective Life or PLC Capital shall have
received an opinion (the receipt of such opinion, a "Tax Event") of independent
nationally recognized tax counsel experienced in such matters to the effect
that, as a result of any change in U.S. law or regulation on or after
__________, 1994, or a written change in interpretation or application of U.S.
law or regulation, by any legislative body, court or governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination on or after
such date), there is more than an insubstantial increase in the risk that (i)
Protective Life will be precluded from deducting the interest on the Series A
Subordinated Debentures for federal income tax purposes, (ii) PLC Capital is
subject to federal income tax with respect to the interest received on the
Series A Subordinated Debentures or (iii) PLC Capital is subject to more than a
DE MINIMIS amount of other taxes, duties or other governmental charges;
PROVIDED, however, that solely in the case of a Tax Event under clause (iii)
above, PLC Capital may not exchange the Series A Preferred Securities for Series
A Subordinated Debentures unless it shall have obtained an opinion of
independent nationally recognized tax counsel experienced in such matters to the
effect that holders of the Series A Preferred Securities will not recognize gain
or loss for federal income tax purposes as a result of such exchange.
Furthermore, Protective Life shall have the right, upon not less than 30 nor
more than 60 days' notice given within 90 days after the applicable change in
U.S. law or regulation or written change in interpretation of U.S. law or
regulation referred to above, to cause PLC Capital to redeem the Series A
Preferred Securities for cash at the Redemption Price if Protective Life shall
have received an opinion (the receipt of such opinion, also a "Tax Event") of
independent nationally recognized tax counsel experienced in such matters that,
as a result of a change in U.S. law or regulation as described above, there is
more than an insubstantial increase in the risk that Protective Life would be
precluded from deducting the interest on the Series A Subordinated Debentures
for federal income tax purposes even if the Series A Preferred Securities were
exchanged for the Series A Subordinated Debentures as described above.
____Protective Life and PLC Capital have become aware that the Department of the
Treasury is studying the federal income tax treatment of the interest payable on
obligations similar to those evidenced by the Series A Subordinated Debentures.
While Protective Life is unable to predict the outcome of this matter, there can
be no assurance that a Tax Event will not occur.
__REDEMPTION AND EXCHANGE PROCEDURES
____After the date fixed for any exchange of the Series A Subordinated
Debentures for the Series A Preferred Securities, (i) the Series A Preferred
Securities will no longer be deemed to be outstanding, (ii) Depository Trust
Company ("DTC") or its nominee, as the record holder of the Series A Preferred
Securities, will exchange the global certificate or certificates representing
the Series A Preferred Securities for a registered global certificate or
certificates representing the Series A Subordinated Debentures to be delivered
upon such exchange, (iii) any certificates representing Series A Preferred
Securities not held by DTC or its nominee will be deemed to represent Series A
Subordinated Debentures having a principal amount equal to the stated liquidated
preference of such Series A Preferred Securities until such certificates are
presented to PLC Capital or its agent for exchange and (iv) all rights of the
holders of Series A Preferred Securities so exchanged will cease, except the
right of such holders to receive
S-14
<PAGE>
Series A Subordinated Debentures. If the Series A Preferred Securities are
exchanged for Series A Subordinated Debentures, Protective Life has agreed to
use its best efforts to have the Series A Subordinated Debentures listed on the
same exchange, if any, on which the Series A Preferred Securities are listed.
____If PLC Capital gives a notice of redemption for cash in respect of the
Series A Preferred Securities, then, by 12:00 noon, New York time, on the
redemption date, PLC Capital will irrevocably deposit with The Depository Trust
Company funds sufficient to pay the Redemption Price, and will give DTC
irrevocable instructions and authority to pay the Redemption Price to the
holders thereof. See "Book-Entry-Only Issuance; The Depository Trust Company."
If such notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of holders of such
Series A Preferred Securities so called for redemption will cease, except the
right of such holders of such securities to receive the Redemption Price, but
without interest, and such securities will cease to be outstanding. In the event
that any date on which any payment in respect of the redemption of Series A
Preferred Securities is not a Business Day, then payment of the redemption price
payable on such date will be made on the next succeeding Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day. In the event that payment of the
redemption price in respect of Series A Preferred Securities is improperly
withheld or refused and not paid either by PLC Capital or Protective Life
pursuant to the Guarantee, dividends on such securities will continue to
accumulate, at the then applicable rate, from the original redemption date to
the date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption Price.
____Subject to the foregoing and applicable law (including, without limitation,
U.S. federal securities laws), Protective Life or its subsidiaries may at any
time and from time to time purchase outstanding Series A Preferred Securities of
any series by tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION
____In the event of any voluntary or involuntary dissolution, liquidation or
winding-up of PLC Capital, before any payment or distribution of the assets of
PLC Capital shall be made to or set apart for the holders of any class or
classes of Membership Securities or any series of Preferred Securities ranking
junior to the Series A Preferred Securities upon dissolution, liquidation or
winding-up, the holders of the Series A Preferred Securities shall be entitled
to receive, together with the holders of every other series of Preferred
Securities outstanding, if any, ranking PARI PASSU with the Series A Preferred
Securities as to distribution of assets on dissolution, liquidation or
winding-up of PLC Capital ("Liquidation Parity Securities"), an amount equal, in
the case of the holders of the Series A Preferred Securities, to the aggregate
of the liquidation preference of $25 per Series A Preferred Security and all
accrued and unpaid dividends (whether or not declared) to the date of payment
(the "Liquidation Distribution"), payable in cash. If, upon any such
dissolution, liquidation or winding up, the Liquidation Distribution can be paid
only in part because PLC Capital has insufficient assets available to pay in
full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on the Liquidation Parity Securities, then the amounts
payable directly by PLC Capital on the Series A Preferred Securities and on such
Liquidation Parity Securities shall be paid on a pro rata basis, so that
_____(i)_(x)_the aggregate amount paid as the liquidation distribution on
the Series A Preferred Securities bears to (y) the aggregate amount paid as
the liquidation distribution on the Liquidation Parity Securities the same
ratio as
____(ii)_(x)_the aggregate Liquidation Distribution on all Series A
Preferred Securities bears to (y) the aggregate maximum liquidation
distributions on the Liquidation Parity Securities.
____Pursuant to the L.L.C. Agreement, PLC Capital will automatically dissolve
and be liquidated (i) when the period fixed for the duration of PLC Capital
expires (I.E., December 31, 2094), (ii) upon the death, retirement, resignation,
expulsion, bankruptcy (as defined in Section 18-304 of the Delaware Limited
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Liability Company Act) or dissolution of a holder of Common Securities or the
occurrence of any other event which terminates the continued membership of a
Common Securities holder in PLC Capital, unless, if there is more than one
Member remaining, the business of PLC Capital is continued by the consent of all
the remaining Members within ninety days following the occurrence of any such
event; (iii) upon the unanimous written consent of the Members; or (iv) upon the
entry of a judicial decree of dissolution under Section 18-802 of the Delaware
Limited Liability Company Act. For purposes of the foregoing, a merger or
consolidation of Protective Life into or with any other entity will not be
deemed a dissolution of Protective Life. Under the L.L.C. Agreement and the
Guarantee, Protective Life will covenant that it will not voluntarily dissolve,
wind up or liquidate PLC Capital, or allow PLC Capital to be dissolved, wound-up
or liquidated, so long as any Preferred Securities are outstanding. See
"Description of the Guarantee -- Certain Covenants of the Guarantor".
____If a limited liability company organized under the laws of the State of
Delaware has any publicly traded limited liability company interests and is
treated as a corporation for U.S. federal income tax purposes, then, on
application by or for a member or the manager of such limited liability company,
the Delaware Court of Chancery shall (x) grant such relief as may be appropriate
to cause the limited liability company not to have any publicly traded limited
liability company interests or (y) decree the dissolution of the limited
liability company.
PERSONAL LIABILITY OF HOLDERS OF COMMON SECURITIES
____Under the L.L.C. Agreement Protective Life and a special purpose subsidiary
of Protective Life, in their capacities as holders of Common Securities, will be
liable for, and will pay (as additional capital contributions to PLC Capital)
the debts of and claims against PLC Capital (including tax obligations, but
excluding obligations in respect of Series A Preferred Securities).
VOTING RIGHTS
____Except as provided below and under "Description of the Guarantee --
Amendments and Assignment" and "Description of the Series A Subordinated
Debentures -- Miscellaneous," the holders of the Series A Preferred Securities
will have no voting rights.
____If (i) PLC Capital fails to pay dividends in full on the Series A Preferred
Securities (whether or not funds are legally available therefor) for 18 monthly
dividend periods or (ii) Protective Life breaches any of its obligations under
the Series A Subordinated Debentures or any of its obligations under the
Guarantee (as defined in "Description of the Guarantee"), then the holders of
the outstanding Series A Preferred Securities, together with the holders of any
other series of Preferred Securities having the right to vote for the
appointment of a trustee in such event, acting as a single class, will be
entitled, by ordinary resolution passed by the holders of a majority in
liquidation preference (plus all accumulated and unpaid dividends) of such
Preferred Securities present in person or by proxy at a separate general meeting
of such holders convened for such purpose (or by written consent), to appoint
and authorize a trustee to enforce PLC Capital's rights as a creditor in respect
of the Series A Subordinated Debentures, to enforce the limited obligations
undertaken by Protective Life under the Guarantee and to declare and pay
dividends to the extent that funds are held by PLC Capital and legally available
therefor. For a description of rights and obligations under the Series A
Subordinated Debentures, including the right of Protective Life to extend the
period to the next interest payment date to up to 60 months (even if a trustee
has been appointed), see "Description of the Series A Subordinated Debentures."
For purposes of determining whether PLC Capital has failed to pay dividends in
full for 18 monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full cumulative
dividends have been or contemporaneously are declared and paid with respect to
all monthly dividend periods terminating on or prior to the date of payment of
such full cumulative dividends. Not later than 30 days after such entitlement
arises, the Managing Member will convene a separate general meeting for the
above purpose. If the Managing Member fails to convene such meeting within such
30-day period, the holders of 10% in aggregate liquidation preference (plus all
accumulated and unpaid dividends) of the outstanding Series A Preferred
Securities and such other Preferred Securities will be entitled to
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convene such separate general meeting. The provisions of the L.L.C. Agreement
relating to the convening and conduct of the general meetings of Members (as
defined in the L.L.C. Agreement) will apply with respect to any such separate
general meeting. Any trustee so appointed shall vacate office, subject to the
terms of such other Preferred Securities, if PLC Capital (or Protective Life
pursuant to the Guarantee) shall have paid in full all accumulated and unpaid
dividends on the Series A Preferred Securities (if the event that gave rise to
such appointment was clause (i) of this paragraph) or such breach by Protective
Life shall have been cured (if the event that gave rise to such appointment was
clause (ii) of this paragraph).
____If any resolution is proposed for adoption by the Members of PLC Capital
providing for, or the Managing Member proposes to take, any action that will (w)
amend, alter or repeal the provisions of the L.L.C. Agreement (including the
Action creating the Series A Preferred Securities) so as to adversely affect any
rights or powers of the Series A Preferred Securities or the holders thereof or
result in the authorization or issuance of any limited liability company
interest in PLC Capital ranking, as to dividends or upon dissolution,
liquidation or winding-up, senior to the Series A Preferred Securities, (x)
result in the dissolution, liquidation or winding-up of PLC Capital, (y) waive
any rights of PLC Capital under the Series A Subordinated Debentures or allow
the Series A Subordinated Debentures to be repurchased or prepaid prior to
____________, 1999 (unless there is an Event of Default thereunder and except in
connection with a redemption occurring as a result of a Tax Event or an
Investment Company Act Event) or (z) modify (i) Section 2.6 of the L.L.C.
Agreement which limits the business and activity in which PLC Capital may
engage, (ii) Section 7.1 of the L.L.C. Agreement which absolutely prohibits
transfers of Common Securities, (iii) Section 3.3 of the L.L.C. Agreement which
requires the holders of the Common Securities to contribute amounts to PLC
Capital such that the Common Securities represent at all times not less than 21%
of all interests in the capital, income, gain, loss, deduction or credit of PLC
Capital or (iv) Section 6.2 of the L.L.C. Agreement pursuant to which the
holders of the Common Securities agree to be personally liable for and to pay
all debts of and claims against PLC Capital (excluding obligations in respect of
the Preferred Securities), then the holders of outstanding Series A Preferred
Securities (and, in the case of a resolution described in clause (w) above that
would, to a like extent, adversely affect the rights or powers of any Dividend
Parity Securities or any Liquidation Parity Securities, the holders of such
Dividend Parity Securities or such Liquidation Parity Securities, as the case
may be, or, in the case of any resolution described in clause (x) or (z) above,
all Liquidation Parity Securities) will be entitled to vote together as a class
on such resolution (but not on any other resolution) (i) at a separate meeting
of such holders, (ii) at the general meeting of Members called for the purpose
of adopting such resolution or (iii) without a meeting but in writing, and such
resolution shall not be effective except with the approval, in the case of
clauses (i) and (ii), of the holders of 66 2/3% in aggregate liquidation
preference (plus all accrued and unpaid dividends) of such outstanding
securities present in person or by proxy at a meeting at which 66 2/3% in
aggregate liquidation preference (plus all accrued and unpaid dividends) of such
securities are so present or, in the case of clause (iii), by the holders of
66 2/3% in aggregate liquidation preference (plus all accrued and unpaid
dividends) of such securities; PROVIDED, however, that no such approval shall be
required under clauses (w) and (x) if the dissolution, liquidation and
winding-up of PLC Capital is proposed or initiated upon the initiation of
proceedings, or after proceedings have been initiated, for the dissolution,
liquidation or winding-up of Protective Life.
____PLC Capital will cause a notice of any meeting at which holders of the
Series A Preferred Securities are entitled to vote to be mailed to each holder
of record of the Series A Preferred Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote and (iii) instructions for the delivery of proxies.
____Notwithstanding that holders of Series A Preferred Securities are entitled
to vote under any of the circumstances described above, any of the Series A
Preferred Securities and such other Preferred Securities entitled to vote with
such Series A Preferred Securities as a single class outstanding at such
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time that are owned by Protective Life or any Affiliate (as defined in the
L.L.C. Agreement), either directly or indirectly, shall not be entitled to vote
and shall, for the purposes of such vote, be treated as if they were not
outstanding.
____No vote of the holders of the Series A Preferred Securities will be required
for PLC Capital to redeem and cancel Series A Preferred Securities in accordance
with the L.L.C. Agreement (including the Actions).
BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST COMPANY
____The Depository Trust Company ("DTC"), New York, New York will act as
securities depository for the Series A Preferred Securities. The Series A
Preferred Securities will be issued as fully-registered securities registered in
the name of Cede & Co. (DTC's partnership nominee) in substantially the form
attached as an exhibit to the Registration Statement of which this Prospectus
Supplement forms a part. One or more fully-registered Series A Preferred
Security certificates will be issued, representing in the aggregate the total
number of Series A Preferred Securities, and will be deposited with DTC.
____DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations ("Direct Participants"). DTC is owned by a
number of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
participants are on file with the Securities and Exchange Commission.
____Purchases of Series A Preferred Securities under the DTC system must be made
by or through Direct Participants, who will receive a credit for the Series A
Preferred Securities on DTC's records. The ownership interest of each actual
purchaser of each Series A Preferred Security (a "Beneficial Owner") is in turn
to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
____To facilitate subsequent transfers, all Series A Preferred Securities
deposited by Participants with DTC are registered in the name of DTC's nominee,
Cede & Co. The deposit of Series A Preferred Securities with DTC and their
registration in the name of Cede & Co. effect no change in beneficial ownership.
DTC has no knowledge of the actual Beneficial Owners of the Series A Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Series A Preferred Securities are credited, which may or
may not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
____Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
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____Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
____Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will consent or vote with respect to Series A Preferred Securities. Under its
usual procedures, DTC mails an Omnibus Proxy to PLC Capital as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consent or voting
rights to those Direct Participants to whose accounts the Series A Preferred
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
____Dividend payments on the Series A Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payable date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payable date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC or PLC Capital, subject to any statutory
regulatory requirements as may be in effect from time to time. Payment of
dividends to DTC is the responsibility of PLC Capital, disbursement of such
payments to Direct Participants shall be the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
____DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to PLC Capital. Under such circumstances, in the event that a successor
securities depository is not obtained, Series A Preferred Security certificates
are required to be printed and delivered.
____The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that PLC Capital believes to be reliable, but
neither Protective Life nor PLC Capital takes responsibility for the accuracy
thereof.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
____AmSouth Bank NA will act as registrar, transfer agent and paying agent for
the Series A Preferred Securities (the "Paying Agent").
____Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of PLC Capital, but upon payment (with the giving
of such indemnity as PLC Capital or Protective Life may require) in respect of
any tax or other governmental charges which may be imposed in relation to it.
____PLC Capital will not be required to register or cause to be registered the
transfer of Series A Preferred Securities after such Series A Preferred
Securities have been called for redemption.
MISCELLANEOUS
____Except as described in this Prospectus Supplement, PLC Capital is not
subject to any mandatory redemption or sinking fund provisions with respect to
the Series A Preferred Securities. Holders of Series A Preferred Securities have
no preemptive rights.
____The Common Securities in PLC Capital are owned by the Managing Member and
one of its wholly-owned subsidiaries. The Common Securities are not
transferable. The Managing Member and the other holder of the Common Securities
are required, pursuant to the terms of the L.L.C. Agreement, to contribute to
PLC Capital amounts such that the Common Securities at all times represent at
least 21% of all interests in the capital, income, gain, loss, deduction and
credit of PLC Capital.
DESCRIPTION OF THE GUARANTEE
____Set forth below is condensed information concerning the Guarantee which will
be executed and delivered by Protective Life for the benefit of the holders from
time to time of Preferred Securities. The
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summary contains all material information concerning the Guarantee but does not
purport to be complete. Reference to provisions of the Guarantee are qualified
in their entirety by reference to the text of the Guarantee, a copy of which has
been filed as an exhibit to the Registration Statement of which this Prospectus
Supplement is part.
GENERAL
____Protective Life will irrevocably and unconditionally agree, to the extent
set forth herein, to pay the Guarantee Payments (defined below) (except to the
extent paid by PLC Capital), as and when due, regardless of any defense, right
of set-off or counterclaim which PLC Capital may have or assert. The following
payments to the extent not paid by PLC Capital (the "Guarantee Payments") will
be subject to the Guarantee (without duplication): (i) any accumulated and
unpaid dividends that have been theretofore declared on the Series A Preferred
Securities out of funds held by PLC Capital and legally available therefor; (ii)
the redemption price (including all accumulated and unpaid dividends whether or
not declared) payable, out of funds held by PLC Capital and legally available
therefor, with respect to any Series A Preferred Securities called for
redemption by PLC Capital; and (iii) in the event of any dissolution,
liquidation or winding-up of PLC Capital, the lesser of (a) the aggregate of the
liquidation preference and all accrued and unpaid dividends (whether or not
declared) to the date of payment and (b) the amount of remaining assets of PLC
Capital legally available to holders of Series A Preferred Securities. In
addition, Protective Life will unconditionally and irrevocably guarantee, in the
event of any exchange by PLC Capital of Series A Preferred Securities for Series
A Subordinated Debentures as described herein, the delivery of a registered
global certificate or certificates representing the proper amount of Series A
Subordinated Debentures to the Depository Trust Company, New York, New York or
such other entity or person as shall at the date of exchange be acting as
securities depository for the Series A Preferred Securities. Protective Life's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Protective Life to the holders of Series A Preferred
Securities or by causing PLC Capital to pay such amounts to such holders.
____The Guarantee is not a guarantee that any particular dividend or amount on
dissolution, liquidation or winding up will be paid; rather, the Guarantee is
solely a guarantee of payment of dividends, if any, that are in fact declared
out of funds legally available therefor, of the redemption price payable, out of
funds held by PLC Capital and legally available therefor, with regard to any
Series A Preferred Securities called for redemption by PLC Capital and of
amounts, if any, available for distribution to the holders of Series A Preferred
Securities upon dissolution, liquidation or winding-up after payment to all
creditors of PLC Capital of all amounts due to them.
CERTAIN COVENANTS OF PROTECTIVE LIFE
____In the Guarantee, Protective Life will covenant that, so long as any Series
A Preferred Securities remain outstanding, neither Protective Life, nor any
majority-owned subsidiary of Protective Life, shall declare or pay any dividend
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or make any guarantee payments with respect to the
foregoing (other than (i) payments under the Guarantee or any other guarantee of
any other series of Preferred Securities ranking PARI PASSU with the Series A
Preferred Securities, (ii) dividends or guarantee payments to Protective Life or
(iii) redemptions or purchases pursuant to Protective Life's Share Purchase
Rights Plan described under "Description of Capital Stock of Protective Life --
Junior Preferred Stock" in the Prospectus, or any successor to such Plan) if at
such time (x) Protective Life shall have extended the period to the next
interest payment date under the Series A Subordinated Debentures, or shall be in
default with respect to its payment or other obligations under the Guarantee,
(y) there shall have occurred any Event of Default or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default under the Subordinated Indenture or (z) there shall exist any arrearage
in the payment of accumulated dividends on the Series A Preferred Securities.
____Pursuant to the Guarantee, Protective Life will agree that, so long as any
Series A Preferred Securities are outstanding, (i) it shall maintain ownership,
directly or indirectly, of 100% of the Common Securities; (ii) it shall not
voluntarily dissolve, liquidate or wind-up PLC Capital, or permit PLC Capital to
be dissolved, liquidated or wound-up; and (iii) it shall timely perform all of
its respective duties under the L.L.C. Agreement.
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Series A Preferred Securities (in which case no vote will be
required), the Guarantee may be changed only with the prior approval of the
holders of not less than 66 2/3% in liquidation preference of the Series A
Preferred Securities by agreement in writing or present in person or by proxy at
a separate general meeting and voting as a single class. All guarantees and
agreements contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of Protective Life and shall inure to
the benefit of the holders of the Series A Preferred Securities. The quorum for
any such meeting and the determination of the Series A Preferred Securities
entitled to vote are set forth under "Description of the Series A Preferred
Securities -- Voting Rights" above.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon full
payment of the Redemption Price (including all accumulated arrears and accruals
of unpaid dividends) of all Series A Preferred Securities, upon full payment of
the amounts payable upon liquidation of PLC Capital or upon exchange of all
Series A Preferred Securities for Series A Subordinated Debentures as described
above. The Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the Series A Preferred Securities must
restore payment of any sums paid under the Series A Preferred Securities or the
Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will rank PARI PASSU with the Subordinated Debentures and,
accordingly, will be subordinate and junior in right of payment to all Senior
Indebtedness as such term is defined in the Subordinated Indenture. See
"Description of Debt Securities of Protective Life -- Subordination under the
Subordinated Indenture" in the accompanying Prospectus.
The Guarantee will constitute a guarantee of payment and not of collection.
A holder of Series A Preferred Securities may enforce the Guarantee directly
against Protective Life, and Protective Life will waive any right or remedy to
require that any action be brought against PLC Capital or any other person or
entity before proceeding against Protective Life. The Guarantee will not be
discharged except by payment of the Guarantee Payments in full to the extent not
paid by PLC Capital and by complete performance of all obligations under the
Guarantee.
GOVERNING LAW
The Guarantee will be governed and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF THE SERIES A SUBORDINATED DEBENTURES
Set forth below is condensed information concerning the Series A
Subordinated Debentures that will evidence the loans to be made by PLC Capital
to Protective Life of the proceeds of (i) the Series A Preferred Securities and
(ii) the Common Securities and related capital contributions ("Common Securities
Payments"). Series A Subordinated Debentures will be issued under the
subordinated indenture, dated , 1994, between Protective Life and
AmSouth Bank, N.A., as Trustee (the "Subordinated Indenture"). See "Description
of Debt Securities of Protective Life" in the accompanying Prospectus and the
description below for a summary of the material terms of the Subordinated
Indenture. References to provisions of the Subordinated Indenture are qualified
in their entirety by reference to the text of the Subordinated Indenture, a form
of which has been filed as an exhibit to the Registration Statement of which
this Prospectus Supplement forms a part.
GENERAL
Pursuant to the Subordinated Indenture, Protective Life will issue Series A
Subordinated Debentures to PLC Capital in an aggregate principal amount of
$ , such amount being the sum of (i) the aggregate stated liquidation
preference of the Series A Preferred Securities issued and sold by PLC Capital
and (ii) the Common Securities Payments. [In the event that the Underwriters'
over-allotment option is exercised, Protective Life will agree to issue
additional Series A Subordinated Debentures to
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PLC Capital equal to the aggregate stated liquidation preference of the Series A
Preferred Securities so sold upon such exercise plus related aggregate
additional cash contributions to PLC Capital by the holders of the Common
Securities. If the over-allotment option is exercised in full, the aggregate
principal amount of such additional Series A Subordinated Debentures will equal
$ .]
The entire principal amount of the Series A Subordinated Debentures shall
become due and payable (together with any accrued and unpaid interest thereon,
including Additional Interest (as hereinafter defined), if any) on May , 2024
(the "Maturity Date"), subject to relending under conditions described under
"Terms of the Series A Preferred Securities -- Mandatory Redemption upon
Repayment of Series A Subordinated Debentures at Maturity." Upon exchange of the
Series A Preferred Securities for Series A Subordinated Debentures, (i) the
Series A Subordinated Debentures will no longer be subject to mandatory
prepayment upon the dissolution, winding up or liquidation of PLC Capital, (ii)
the Series A Subordinated Debentures will not be subject to an election by
Protective Life to exchange Series A Subordinated Debentures for new debentures
or to repay the Series A Subordinated Debentures and re-borrow the proceeds from
such repayment, (iii) Protective Life will use its best efforts to have the
Series A Subordinated Debentures listed on the same exchange on which the Series
A Preferred Securities are listed, (iv) the Subordinated Indenture or Series A
Subordinated Debentures may, thereafter, be modified or amended with the consent
of not less than 66 2/3% in principal amount of the Series A Subordinated
Debentures at the time outstanding, PROVIDED, however, that no such modification
or amendment may, without the consent of the holder of each Series A
Subordinated Debenture affected thereby, (a) extend the stated maturity of the
principal of any Series A Subordinated Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof or change the currency in which
the principal thereof or interest thereon is payable or impair the right to
institute suit for the enforcement of any payment on any Series A Subordinated
Debenture when due or (b) reduce the aforesaid principal amount of Series A
Subordinated Debentures of any series the consent of the holders of which is
required for any such modification and (v) Protective Life's obligation to pay
Additional Interest (other than Additional Interest, if any, accrued and unpaid
to such date of exchange) shall cease.
MANDATORY PREPAYMENT
If PLC Capital redeems Series A Preferred Securities in cash for the
Redemption Price in accordance with the terms thereof, the Series A Subordinated
Debentures will become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
redeemed (together with accrued interest on such principal amount to the date of
redemption). Any payment pursuant to this provision shall be made prior to 12:00
noon, New York time, on the date of such redemption or at such other time on
such earlier date as PLC Capital and Protective Life shall agree.
OPTIONAL PREPAYMENT
Protective Life shall have the right to prepay the Series A Subordinated
Debentures, without premium or penalty, in whole or in part (together with any
accrued but unpaid interest, including Additional Interest, if any, on the
portion being prepaid) at any time on or after , 1999.
INTEREST
The Series A Subordinated Debentures shall bear interest at an annual rate
of % from , 1994 until maturity. Such interest shall be payable on
the last day of each calendar month of each year, commencing May , 1994.
Interest will be computed on the basis of twelve 30-day months and a 360-day
year and, for any interest 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. If any date on which interest is payable on the Series A Subordinated
Debentures is not a Business Day, then payment of the interest due on such date
will be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date; PROVIDED, however, that Protective Life shall have
S-22
<PAGE>
the right at any time or times during the term of the Series A Subordinated
Debentures, so long as Protective Life is not in default in the payment of
interest on the Series A Subordinated Debentures, to extend the interest payment
period to the next interest payment date by a period (not to exceed 60 months
from the last date on which interest was paid in full) at the end of which
Protective Life shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Series A Subordinated Debentures
to the extent permitted by applicable law); and PROVIDED FURTHER that, during
any such extended interest period, or at any time during which there is an
uncured Default or Event of Default under the Series A Subordinated Debentures,
Protective Life shall not pay any dividends on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its shares of capital stock
or make any guarantee payments with respect to the foregoing (other than (a)
redemptions or purchases pursuant to Protective Life's Share Purchase Rights
Plan described under "Description of Capital Stock of Protective Life -- Junior
Preferred Stock" in the Prospectus, or any successor to such Plan and (b)
payments under any guarantee of the Series A Preferred Securities or any other
series of Preferred Securities ranking PARI PASSU with the Series A Preferred
Securities). Protective Life shall give PLC Capital and the holders of the
Series A Preferred Securities not less than five Business Days' prior notice of
its selection of such extended interest payment period.
METHOD AND DATE OF PAYMENT
Each payment by Protective Life of principal and interest (including
Additional Interest, if any) on the Series A Subordinated Debentures shall be
made to PLC Capital in United States Dollars at such place and to such account
as may be designated by PLC Capital.
SET-OFF
Notwithstanding anything to the contrary in the Subordinated Indenture or
the Series A Subordinated Debentures, Protective Life shall have the right to
set-off any payment it is otherwise required to make thereunder with and to the
extent Protective Life has theretofore made, or is concurrently on the date of
such payment making, a payment under the Guarantee.
SUBORDINATION
The Subordinated Indenture will provide that Protective Life and PLC Capital
covenant and agree that each of the Series A Subordinated Debentures is
subordinate and junior in right of payment to all Senior Indebtedness as
provided in the Subordinated Indenture. The Subordinated Indenture defines the
term "Senior Indebtedness" as the principal, premium, if any, and interest on
(i) all indebtedness of Protective Life, whether outstanding on the date of the
Series A Subordinated Debentures or thereafter created, incurred or assumed,
which is for money borrowed, or evidenced by a note or similar instrument given
in connection with the acquisition of any business, properties or assets,
including securities, (ii) any indebtedness of others of the kinds described in
the preceding clause (i) for the payment of which Protective Life is responsible
or liable as guarantor or otherwise and (iii) amendments, renewals, extensions
and refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such indebtedness is not superior in right of payment to
the Series A Subordinated Debentures. The Senior Indebtedness shall continue to
be Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
the Senior Indebtedness or extension or renewal of the Senior Indebtedness. For
a more detailed description of the subordination provisions set forth in the
Subordinated Indenture, see "Description of Debt Securities of Protective Life
- -- Subordination under the Subordinated Indenture" in the accompanying
Prospectus.
COVENANTS
In the Series A Subordinated Debentures, Protective Life will agree that, so
long as the Series A Preferred Securities are outstanding, (i) it shall not
declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, or make any
guarantee payments with respect to the foregoing (other than (a) redemptions or
purchases pursuant to Protective Life's Share Purchase Rights Plan described
under "Description of Capital Stock of Protective Life --
S-23
<PAGE>
Junior Preferred Stock" in the Prospectus, or any successor to such Plan and (b)
payments pursuant to any guarantee of the Series A Preferred Securities or any
other series of Preferred Securities ranking PARI PASSU with the Series A
Preferred Securities) if at such time (x) there shall have occurred any Event of
Default or event (a "Default") that, with the giving of notice or the lapse of
time or both, would constitute an Event of Default or (y) Protective Life shall
be in default with respect to its payment or other obligations under any
guarantee of the Series A Preferred Securities, (ii) it shall maintain
ownership, directly or indirectly, of all of the Common Securities and (iii) it
shall timely perform all of its respective duties under the L.L.C. Agreement.
Protective Life also will agree (i) that its obligations under the Series A
Subordinated Debentures will also be for the benefit of the holders from time to
time of the Series A Preferred Securities and that such holders or a trustee
acting on behalf of such holders will be entitled to enforce the Series A
Subordinated Debentures directly against Protective Life as third party
beneficiaries of Protective Life's obligations thereunder, and (ii) not to
consolidate with or merge into another entity or permit another entity to
consolidate with or merge into it unless (a) at such time no Event of Default
has occurred and is continuing, or would occur as a result of such merger and
(b) Protective Life is the survivor of such merger or the entity formed by or
resulting from such merger shall expressly assume payment of the principal of
and premium, if any, and interest on the Series A Subordinated Debentures.
EVENTS OF DEFAULT
If an Event of Default (as defined in the Subordinated Indenture and
described in the accompanying Prospectus) shall occur and be continuing, PLC
Capital will have the right to declare the principal of and the interest on the
Series A Subordinated Debentures (including any interest subject to an extension
of the interest payment period) and any other amounts payable on the Series A
Subordinated Debentures to be forthwith due and payable, whereupon the Series A
Subordinated Debentures and any other amounts payable in respect of the Series A
Subordinated Debentures under the Series A Subordinated Debentures or the
Subordinated Indenture shall be forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which will be waived by
Protective Life, and PLC Capital will have the right to enforce its other rights
as a defaulted creditor with respect to the Series A Subordinated Debentures,
subject to the subordination provisions thereof. See "Description of Debt
Securities of Protective Life -- Events of Default, Notice and Certain Rights on
Default" in the accompanying Prospectus. Under the terms of the Series A
Preferred Securities, the holders of outstanding Series A Preferred Securities
will have the rights referred to under "Terms of the Series A Preferred
Securities -- Voting Rights", including the right to appoint a trustee, which
trustee shall be authorized to exercise PLC Capital's rights to accelerate the
principal amount of the Series A Subordinated Debentures and to enforce PLC
Capital's other rights under the Series A Subordinated Debentures. Because the
Series A Subordinated Debentures will be for the benefit of the holders of
Series A Preferred Securities, PLC Capital will agree that it will declare
principal of and interest on the Series A Subordinated Debentures due and
payable in the event of an interest payment or covenant Event of Default if, and
only if, so directed by holders of 25% or more of the Series A Preferred
Securities, or by a trustee appointed by such holders as a result of an
arrearage in dividend payments on the Series A Preferred Securities.
MISCELLANEOUS
Protective Life shall have the right at all times to assign any of its
rights or obligations under the Series A Subordinated Debentures to a direct or
indirect wholly-owned subsidiary of Protective Life; PROVIDED, HOWEVER, that, in
the event of any such assignment, Protective Life shall remain jointly and
severally liable for all such obligations. PLC Capital may not assign any of its
rights under the Series A Subordinated Debentures, other than in connection with
a merger or consolidation or sale of assets permitted under the terms of the
Subordinated Debenture. Subject to the foregoing, the Series A Subordinated
Debentures shall be binding upon and inure to the benefit of Protective Life and
PLC Capital and their respective successors and assigns. Any assignment by
Protective Life or PLC Capital in contravention of such provisions will be null
and void.
S-24
<PAGE>
The Series A Subordinated Debentures and the Subordinated Indenture will be
governed by and construed in accordance with the internal laws of the State of
New York.
The Series A Subordinated Debentures may be amended by mutual consent of the
parties in the manner the parties shall agree; PROVIDED, HOWEVER, that, so long
as any of the Series A Preferred Securities remain outstanding, no such
amendment shall be made that adversely affects the holders of the Series A
Preferred Securities, no termination of the Series A Subordinated Debentures
shall occur, and no Event of Default or compliance with any covenant under the
Series A Subordinated Debentures may be waived by PLC Capital, without the prior
approval of the holders of at least 66 2/3% in liquidation preference of all
Series A Preferred Securities then outstanding, in writing or at a duly
constituted meeting of such holders.
CERTAIN FEDERAL TAX CONSIDERATIONS
The following is a summary, based on the advice of Debevoise & Plimpton,
special counsel to Protective Life and PLC Capital, of certain U.S. federal
income tax considerations relevant to the purchase, ownership and disposition of
the Series A Preferred Securities by a beneficial owner acquiring Series A
Preferred Securities on their original issue at the original offering price who
is (i) an individual citizen or a resident of the United States, (ii) a
corporation or partnership created or organized in or under the laws of the
United States or any state thereof or the District of Columbia or (iii) an
estate or trust subject to United States federal income taxation without regard
to the source of its income (a "United States Person"). This summary does not
address potential tax consequences to a purchaser that is not a United States
Person. Neither PLC Capital nor Protective Life is required to pay any
additional amounts with respect to payments of dividends on the Series A
Preferred Securities if any withholding or similar taxes are imposed on any such
dividends; accordingly, any such taxes would reduce the amounts that would be
received by any beneficial owner that is not a United States Person. PROSPECTIVE
PURCHASERS OF THE SERIES A PREFERRED SECURITIES THAT ARE NOT UNITED STATES
PERSONS ARE URGED TO CONSULT THEIR TAX ADVISORS.
This summary does not purport to address all potential tax consequences that
may be applicable to a beneficial owner of a Series A Preferred Security, and is
not intended to be wholly applicable to all categories of investors (including
insurance companies, banks, tax-exempt organizations, dealers in securities and
persons acquiring Series A Preferred Securities as a straddle or hedge or as
part of a "conversion transaction") or persons whose functional currency is not
the United States dollar. This discussion is based upon the United States
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
(including proposed Treasury Regulations), Internal Revenue Service rulings and
pronouncements and judicial decisions now in effect, all of which are subject to
change at any time. Such changes may be applied retroactively in a manner that
could cause tax consequences to vary substantially from the consequences
described below, possibly adversely affecting a beneficial owner of a Series A
Preferred Security. These authorities are subject to various interpretations and
it is therefore possible that the federal income tax treatment of the Series A
Preferred Securities may differ from the treatment described below.
PROSPECTIVE PURCHASERS OF SERIES A PREFERRED SECURITIES ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS AS TO THE FEDERAL TAX CONSEQUENCES OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES A PREFERRED SECURITIES, AS WELL AS
THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
INCOME FROM SERIES A PREFERRED SECURITIES
In the opinion of Debevoise & Plimpton, PLC Capital will be treated as a
partnership for federal income tax purposes. Each beneficial owner of a Series A
Preferred Security (a "Securityholder") will be required to include in gross
income its distributive share of PLC Capital's net income. Such income will
generally not exceed dividends received on a Series A Preferred Security, except
in limited circumstances as described under "-- Potential Extension of Payment
Period" and "-- Information Returns." Any amount so included in a
Securityholder's gross income will increase its tax basis in the Series A
S-25
<PAGE>
Preferred Securities, and the amount of cash dividends to the Securityholder
will reduce its tax basis in the Series A Preferred Securities. No portion of
such income will be eligible for the dividends received deduction.
PLC Capital does not presently intend to make an election under section 754
of the Code. As a result, a subsequent purchaser of Series A Preferred
Securities may not be permitted to adjust its taxable income from PLC Capital to
reflect any difference between its purchase price for the Series A Preferred
Securities and PLC Capital's underlying tax basis in its assets.
SALE OR REDEMPTION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities
(including a distribution of cash in redemption of all of a Securityholder's
Series A Preferred Securities) equal to the difference between the amount
realized and the Securityholder's tax basis for the Series A Preferred
Securities sold or so redeemed. Gain or loss recognized by a Securityholder on
the sale or exchange of a Series A Preferred Security held for more than one
year will generally be taxable as long-term capital gain or loss. See "--Market
Discount and Premium" below.
POTENTIAL EXTENSION OF PAYMENT PERIOD
Under the terms of the Series A Subordinated Debentures, Protective Life may
be permitted to extend the interest payment period to up to 60 months. In the
event that Protective Life exercises this right, Protective Life may not, among
other things, declare dividends on any share of its preferred or common stock.
In the event that the payment period is extended, PLC Capital will continue to
accrue income, equal to the amount of the interest payment due at the end of the
extended payment period, based on a constant yield method, over the length of
the extended payment period.
Accrued income for any month will be allocated to Securityholders of record
on the record date for dividends in respect of such month (whether or not
dividends are actually paid). As a result, Securityholders of record during an
extended interest payment period will include amounts in respect of interest in
gross income in advance of the receipt of cash. The tax basis of a Series A
Preferred Security will be increased by any such amounts that are included in
income without a receipt of cash, and will be decreased when such cash is
subsequently received from PLC Capital.
EXCHANGE OF SERIES A PREFERRED SECURITIES FOR SERIES A SUBORDINATED DEBENTURES
Under certain circumstances relating to changes in law, as described under
"Description of the Series A Preferred Securities -- Optional Redemption," PLC
Capital may distribute the Series A Subordinated Debentures (or beneficial
interests therein) in exchange for, and liquidation of, the Series A Preferred
Securities. Except as described below, such exchange would be treated as a
non-taxable exchange to a Securityholder and such Securityholder would have an
aggregate tax basis in the Series A Subordinated Debentures received equal to
such Securityholder's aggregate tax basis in its Series A Preferred Securities.
A Securityholder's holding period for the Series A Subordinated Debentures so
received will include the period for which the Series A Preferred Securities
were held by such Securityholder. If the exchange occurs following a
determination that PLC Capital is an "investment company" within the meaning of
the 1940 Act or that it is subject to federal income tax with respect to
interest received on the Series A Subordinated Debentures, the exchange
generally will be taxable to a Securityholder, who will recognize gain or loss
measured by the difference between such Securityholder's basis in its Series A
Preferred Securities and the value of the Series A Subordinated Debentures
received in exchange therefor. In such a case, the holding period of a
Securityholder for the Series A Subordinated Debentures received in the exchange
will not include the period in which the Series A Preferred Securities were
held.
After any exchange of Series A Preferred Securities for Series A
Subordinated Debentures, holders of the Series A Subordinated Debentures
(including those otherwise using a cash basis method of accounting) will be
required to include interest on the Series A Subordinated Debentures as it
accrues, based on a constant yield method (which, under certain circumstances,
could be greater than the stated interest if the Series A Subordinated
Debentures are treated as having been issued for less than their
S-26
<PAGE>
stated principal amount), before the receipt of payments of interest, including
in circumstances where Protective Life has extended the interest payment period.
See "--Potential Extension of Payment Period". Such holder's tax basis in the
Series A Subordinated Debentures will be increased by accrued interest
previously included in income by such holder and reduced by the payment of such
interest. See "--Market Discount and Premium".
MARKET DISCOUNT AND PREMIUM
Securityholders (other than initial purchasers who acquire Series A
Preferred Securities at their original offering price) may be considered to have
market discount, acquisition premium or amortizable bond premium under certain
circumstances and are advised to consult their own tax advisors.
INFORMATION RETURNS
The Managing Member will furnish each Securityholder with a Schedule K-1
setting forth such Securityholder's allocable share of income within 90 days
after the close of PLC Capital's taxable year. In preparing this information,
the Managing Member will use various accounting and reporting conventions to
determine a Securityholder's allocable share of income. See "-- Potential
Extension of Payment Period". If such conventions were successfully challenged
by the Internal Revenue Service, the distributive share of PLC Capital's income
allocable to Series A Preferred Securities in respect of a month in which such
Series A Preferred Securities are sold may be allocated between the seller and
purchaser on some other basis. Any amount so allocated to the Securityholder,
whether as seller or purchaser, would be includible in the Securityholder's
income and would increase the Securityholder's tax basis in its Series A
Preferred Securities.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to PLC Capital (a) the name, address and taxpayer
identification number of the beneficial owner and the nominee; (b) whether the
beneficial owner is (i) a person that is not a United States Person, (ii) a
foreign government, an international organization or any wholly-owned agency or
instrumentality of either of the foregoing, or (iii) a tax-exempt entity; (c)
the amount and description of Series A Preferred Securities held, acquired or
transferred for the beneficial owner; and (d) certain information including the
dates of acquisitions and transfers, means of acquisitions and transfers, and
acquisition cost for purchases, as well as the amount of net proceeds from
sales. Brokers and financial institutions are required to furnish additional
information, including whether they are a United States Person and certain
information on Series A Preferred Securities they acquire, hold or transfer for
their own account. A penalty of $50 per failure (up to a maximum of $100,000 per
calendar year) is imposed by the Code for failure to report such information to
PLC Capital. The nominee is required to supply the beneficial owner of the
Series A Preferred Securities with the information furnished to PLC Capital.
ERISA MATTERS
PLC Capital, Protective Life and other affiliates of PLC Capital or
Protective Life may each be considered a "party in interest" (within the meaning
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or
a "disqualified person" (within the meaning of Section 4975 of the Code) with
respect to many employee benefit plans ("Plans") that are subject to ERISA. The
purchase and/or holding of Series A Preferred Securities or Series A
Subordinated Debentures by a Plan that is subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
Section 4975 of the Code (including individual retirement arrangements and other
plans described in Section 4975(e)(1) of the Code) and with respect to which PLC
Capital, Protective Life or any other affiliate of PLC Capital or Protective
Life is a service provider (or otherwise is a party in interest or a
disqualified person) may constitute or result in a prohibited transaction under
ERISA or Section 4975 of the Code, unless such Series A Preferred Securities or
Series A Subordinated Debentures, are acquired pursuant to and in accordance
with an applicable exemption, such as Prohibited Transaction Class Exemption
("PTCE") 84-14 (an exemption for certain transactions determined by an
independent qualified professional asset manager), PTCE 91-38 (an exemption for
certain transactions involving bank
S-27
<PAGE>
collective investment funds) or PTCE 90-1 (an exemption for certain transactions
involving insurance company pooled separate accounts). Any pension or other
employee benefit plan proposing to acquire any Series A Preferred Securities
should consult with its counsel.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
PLC Capital has agreed to sell to each of the Underwriters named below, and each
of the Underwriters, for whom Goldman, Sachs & Co., Dean Witter Reynolds Inc.,
Kidder, Peabody & Co. Incorporated and The Robinson-Humphrey Company, Inc. (the
"Representatives") are acting as representatives, has severally agreed to
purchase from PLC Capital, the respective number of Series A Preferred
Securities set forth opposite its name below.
<TABLE>
<CAPTION>
NUMBER OF
SERIES A
UNDERWRITERS PREFERRED SECURITIES
- ---------------------------------------------------------------------------------- --------------------
<S> <C>
Goldman, Sachs & Co...............................................................
Dean Witter Reynolds Inc..........................................................
Kidder, Peabody P Co. Incorporated................................................
The Robinson-Humphrey Company, Inc................................................
Total.....................................................................
--------
--------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all the Series A Preferred
Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain dealers at such
price less a concession of $[ ] per Series A Preferred Security. The
Underwriters may allow, and such dealers may reallow, a concession not in excess
of $[ ] per Series A Preferred Security to certain brokers and dealers. After
the Series A Preferred Securities are released for sale to the public, the
public offering price and other selling terms may from time to time be varied by
the Representatives.
Pursuant to the Underwriting Agreement Protective Life has agreed to pay to
the Underwriters, as compensation for their services, an amount equal to
$______________per Series A Preferred Security, except that such compensation
will be $______________per Series A Preferred Security sold to certain
institutions.
[PLC Capital has granted to the Underwriters an option exercisable for 30
days after the date of this Prospectus Supplement to purchase up to [ ]
additional Series A Preferred Securities to cover over-allotments, if any, at
the initial public offering price (with additional Underwriters' compensation),
as set forth on the cover page of this Prospectus Supplement. If the
Underwriters exercise their over-allotment option, the Underwriters have
severally agreed, subject to certain conditions, to purchase approximately the
same percentage thereof that the number of Series A Preferred Securities to be
purchased by each of them, as shown in the foregoing table, bears to the number
of Series A Preferred Securities initially offered hereby.]
Certain of the Underwriters are customers of, or engage in transactions
with, and from time to time have performed services for, Protective Life and its
subsidiaries and associated companies in the ordinary course of business.
S-28
<PAGE>
Prior to this offering, there has been no market for the Series A Preferred
Securities. Application will be made to list the Series A Preferred Securities
on the NYSE. In order to meet one of the requirements for listing the Series A
Preferred Securities on the NYSE, the Underwriters will undertake to sell Series
A Preferred Securities to a minimum of 400 beneficial holders.
PLC Capital and Protective Life have agreed to indemnify the Underwriters
against certain liabilities, including liabilities under the Securities Act.
LEGAL OPINIONS
Tax matters described under "Certain Federal Tax Considerations" in this
Prospectus Supplement have been passed upon by Debevoise & Plimpton. In
rendering its opinion, Debevoise & Plimpton has relied upon an opinion of
Richards, Layton & Finger, P.A. as to certain matters of Delaware law.
S-29
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 15, 1994
PROSPECTUS
U.S. $175,000,000
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
PLC CAPITAL L.L.C.
CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES ("MIPS"*)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
---------------
Protective Life Corporation, a Delaware corporation ("Protective Life"), may
from time to time offer (a) its debt securities, consisting of debentures, notes
and/or other evidences of indebtedness representing unsecured obligations of
Protective Life (the "Debt Securities"), and (b) shares of preferred stock, par
value $1.00 per share ("Preferred Stock"), in each case in one or more series
and in amounts, at prices and on terms to be determined at the time of offering.
PLC Capital L.L.C., a limited liability company formed under the laws of the
State of Delaware ("PLC Capital"), may from time to time offer, in one or more
series, its Cumulative Monthly Income Preferred Securities (the "Preferred
Securities") representing preferred limited liability company interests in PLC
Capital. PLC Capital was formed by Protective Life solely to issue Preferred
Securities and common limited liability company interests ("Common Securities")
and loan the proceeds thereof to Protective Life. Accordingly, the proceeds of
an offering of Preferred Securities, together with all capital contributions
made in respect of Common Securities, will be loaned to Protective Life in
exchange for subordinated Debt Securities of Protective Life ("Subordinated
Debentures") having the terms described herein. Interest and principal payments
on the Subordinated Debentures are intended to fund the payment of periodic
distributions ("dividends") and redemption and liquidation distributions on the
Preferred Securities and the Common Securities. The payment of dividends (but
only if and to the extent declared out of moneys held by PLC Capital and legally
available therefor), and payments on liquidation (but only to the extent of the
remaining assets of PLC Capital) or redemption at the option of PLC Capital with
respect to the Preferred Securities will be guaranteed by a subordinated
guarantee (the "Guarantee") of Protective Life to the extent set forth herein.
See "PLC Capital L.L.C." and "Description of Certain Contractual Back-Up
Obligations of Protective Life" for a description of the various contractual
backup obligations of Protective Life.
Specific terms of the particular Debt Securities, Preferred Stock and
Preferred Securities in respect of which this Prospectus is being delivered (the
"Offered Securities") will be set forth in an accompanying Prospectus Supplement
(the "Prospectus Supplement"), which will describe, without limitation and where
applicable, the following: (x) in the case of Debt Securities, the specific
designation, aggregate principal amount, denomination, maturity, premium, if
any, interest rate (which may be fixed or variable) or method of calculating
interest, if any, place or places where principal, premium, if any, and
interest, if any, will be payable, currency in which principal, premium, if any,
and interest, if any, will be payable, any terms of redemption, any sinking fund
provisions, any listing on a securities exchange and other special terms, and
(y) in the case of Preferred Stock and Preferred Securities, the specific
designation, stated value and liquidation preference per share or security and
number of shares or securities offered, dividend rate (which may be fixed or
variable) or method of calculating dividends, place or places where dividends
will be payable, any terms of redemption, any listing on a securities exchange
and other special terms.
The offering price to the public of the Offered Securities will be limited
to U.S. $175,000,000 in the aggregate (or its equivalent (based on the
applicable exchange rate at the time of issue), if Offered Securities are
offered for consideration denominated in one or more foreign currencies or
currency units as shall be designated by Protective Life). The Debt Securities
may be denominated in United States dollars or, at the option of Protective Life
if so specified in the applicable Prospectus Supplement, in one or more foreign
currencies or currency units. The Debt Securities may be issued in registered
form or bearer form, or both. If so specified in the applicable Prospectus
Supplement, Debt Securities of a series may be issued in whole or in part in the
form of one or more temporary or permanent global securities.
The Offered Securities may be sold to or through underwriters, through
dealers or agents or directly to purchasers. See "Plan of Distribution". The
names of any underwriters, dealers or agents involved in the sale of the Offered
Securities in respect of which this Prospectus is being delivered and any
applicable fee, commission or discount arrangements with them will be set forth
in a Prospectus Supplement.
This Prospectus may not be used to consummate sales of offered securities
unless accompanied by a Prospectus Supplement.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EX-
CHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------
*An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
Protective Life is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Northwestern Atrium Center, 14th Floor, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
In addition, such reports, proxy statements and other information concerning
Protective Life can be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") filed
by Protective Life and PLC Capital with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus does not contain all
the information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to Protective Life, PLC Capital
and the Offered Securities, reference is made to the Registration Statement. The
Registration Statement may be inspected by anyone without charge at the
principal office of the Commission in Washington, D.C. and copies of all or part
of it may be obtained from the Commission upon payment of the prescribed fees.
No separate financial statements of PLC Capital have been included herein.
Protective Life and PLC Capital do not consider that such financial statements
would be material to holders of the Preferred Securities because PLC Capital is
a newly organized special purpose entity, has no operating history and no
independent operations and is not engaged in, and does not propose to engage in,
any activity other than the issuance of the Preferred Securities and the Common
Securities and the lending of the net proceeds thereof to Protective Life
pursuant to loans to be evidenced by Subordinated Debentures. See "PLC Capital
L.L.C". PLC Capital is a limited liability company formed under the laws of the
State of Delaware and will be managed by Protective Life, in its capacity as a
holder of Common Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Protective Life's Annual Report on Form 10-K for the year ended December 31,
1993 and its Current Report on Form 8-K dated August 4, 1993, as filed with the
Commission pursuant to the Exchange Act (file no. 0-9924), are incorporated
herein by reference.
Each document or report subsequently filed by Protective Life pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering described herein shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document. Any statement contained
herein, or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of the Registration Statement or this Prospectus.
Protective Life will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference, other than
certain exhibits to such documents. Requests should be directed to: Protective
Life Corporation, P.O. Box 2606, Birmingham, Alabama 35202 (telephone: (205)
879-9230).
2
<PAGE>
PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company that owns a group of life insurance companies that
provide financial services through the production, distribution and
administration of insurance and investment products. Protective Life Insurance
Company ("Protective Life Insurance"), founded in 1907, is Protective Life's
principal operating subsidiary.
During 1993, Protective Life reported revenues of $760 million and net
income of $57 million. At December 31, 1993, Protective Life had total assets of
$5.3 billion, stockholders' equity of $361 million and life insurance inforce of
$42.5 billion. Protective Life's insurance subsidiaries generated approximately
94% of its revenues in 1993. Protective Life Insurance is currently rated A+
(Superior) by A.M. Best Company, Inc. ("A.M. Best"). A.M. Best, an independent
insurance industry rating organization, assigns fifteen letter ratings to
insurance companies, ranging from "A++ (Superior)" to "C- (Fair)." A.M. Best's
ratings are based on factors of relevance primarily to policyholders and are not
directed to the protection of investors, such as holders of the Offered
Securities. Such ratings do not apply to the Offered Securities.
Protective Life's principal executive offices are located at 2801 Highway
280 South, Birmingham, Alabama 35223, and its telephone number is (205)
879-9230.
Protective Life's ability to pay principal and interest on any Debt
Securities, Preferred Stock or Subordinated Debentures is affected by the
ability of its insurance company subsidiaries, Protective Life's principal
sources of cash flow, to declare and distribute dividends and to make payments
on surplus notes (i.e., deeply subordinated intercompany notes owed by insurance
company subsidiaries to Protective Life that are treated as equity capital for
statutory accounting purposes), both of which may be limited by regulatory
restrictions and, in the case of payments on surplus notes, by certain financial
covenants. Protective Life's cash flow is also dependent on revenues from
investment, data processing, legal and management services rendered to its
subsidiaries. Insurance company subsidiaries of Protective Life are subject to
various state statutory and regulatory restrictions, applicable to insurance
companies generally, that limit the amount of cash dividends, loans and advances
that those subsidiaries may pay to Protective Life. Under Tennessee insurance
laws, Protective Life Insurance may generally only pay dividends to Protective
Life out of its unassigned surplus as reflected in its statutory financial
statements filed in that State. In addition, the Tennessee Commissioner of
Insurance must approve (or not disapprove within 30 days of notice) payment of
an "extraordinary" dividend from Protective Life Insurance, which generally
under Tennessee insurance laws is a dividend that exceeds, together with all
dividends paid by Protective Life Insurance within the previous 12 months, the
greater of (i) 10% of Protective Life Insurance's surplus as regards
policyholders at the preceding December 31 or (ii) the net gain from operations
of Protective Life Insurance for the 12 months ended on such December 31. The
maximum amount that would qualify as ordinary dividends to Protective Life by
its insurance subsidiaries in 1994 is estimated to be $57 million. No assurance
can be given that more stringent restrictions will not be adopted from time to
time by states in which Protective Life's insurance subsidiaries are domiciled,
which restrictions could have the effect, under certain circumstances, of
significantly reducing dividends or other amounts payable to Protective Life by
such subsidiaries without affirmative prior approval by state insurance
regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of a subsidiary of Protective Life, all creditors of such
subsidiary, including holders of life and health insurance policies, would be
entitled to payment in full out of the assets of such subsidiary before
Protective Life, as shareholder or holder of surplus notes, would be entitled to
any payment, and thus such creditors would have to be paid in full before the
creditors of Protective Life (including holders of Debt Securities or
Subordinated Debentures) would be entitled to receive any payment from the
assets of such subsidiary.
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<PAGE>
PLC CAPITAL L.L.C.
PLC Capital is a limited liability company formed under the laws of the
State of Delaware. PLC Capital's offices are located at 2801 Highway 280 South,
Birmingham, Alabama 35223 (Telephone: (205) 879-9230). Protective Life owns,
directly and indirectly, all of the Common Securities of PLC Capital, which
Common Securities are nontransferable. PLC Capital was formed by Protective Life
and its wholly-owned subsidiary solely to issue Common Securities and Preferred
Securities (collectively, the "Membership Securities") and to lend the net
proceeds thereof to Protective Life in exchange for Subordinated Debentures.
Interest and principal payments on Subordinated Debentures are intended to fund
the payment of dividends and redemption and liquidation distributions on the
Membership Securities. Accordingly, PLC Capital's sole source of cash flow is
Protective Life, and PLC Capital's ability to make dividend and other payments
in respect of Preferred Securities will be dependent on interest and principal
payments by Protective Life on the Subordinated Debentures. See "Protective Life
Corporation".
PLC Capital will be managed by Protective Life, in its capacity as a holder
of Common Securities (in such capacity, the "Managing Member"). Holders of
Membership Securities in PLC Capital are referred to herein as "Members." PLC
Capital's Amended and Restated Limited Liability Company Agreement (the "L.L.C.
Agreement") provides that Protective Life, in its capacity as a holder of Common
Securities, shall be liable for all obligations and liabilities of PLC Capital
(including tax obligations, but excluding obligations in respect of Preferred
Securities). Under Delaware law, members who hold Series A Preferred Securities
(other than Protective Life) will not be liable for the debts, obligations and
liabilities of PLC Capital, whether arising in contract, tort or otherwise,
solely by reason of being a member of PLC Capital (subject to any obligation
such members may have to repay any funds that may have been wrongfully
distributed to them).
USE OF PROCEEDS
The proceeds from the sale of any Preferred Securities (together with any
capital contributed in respect of Common Securities) will be loaned to
Protective Life in exchange for Subordinated Debentures. Protective Life will
use borrowings from PLC Capital, and the net proceeds from any sale of Debt
Securities or Preferred Stock, for general corporate purposes, including, but
not limited to, repayments of indebtedness of Protective Life or its
subsidiaries.
RATIO OF CONSOLIDATED EARNINGS TO FIXED CHARGES
The following table sets forth Protective Life's ratio of earnings to fixed
charges:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1989 1990 1991 1992 1993
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Consolidated Earnings
to Fixed Charges*............ 25.8 8.2 9.8 13.5 14.5
<FN>
- ------------------------
*The ratio of consolidated earnings to fixed charges is calculated by dividing
the sum of income before income tax (excluding pretax minority interest) and
interest expense on debt, by interest expense on debt.
</TABLE>
DESCRIPTION OF DEBT SECURITIES OF PROTECTIVE LIFE
The Debt Securities offered hereby are to be issued in one or more series
under either (i) the Senior Indenture, dated as of , 1994 (the "Senior
Indenture"), between Protective Life and The Bank of New York, as Trustee (the
"Trustee") or (ii) the Subordinated Indenture, dated as of , 1994 (the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between Protective Life and AmSouth Bank NA, as trustee (also,
the "Trustee"), the forms of which have been filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
The statements herein relating to the Debt Securities and the following
summaries of certain provisions of the Indentures do not purport to be complete
and are subject to, and are qualified in their
4
<PAGE>
entirety by reference to, all the provisions of the Indentures (as they may be
amended or supplemented from time to time), including the definitions therein of
certain terms capitalized in this Prospectus. Whenever particular Sections or
defined terms of the Indentures (as they may be amended or supplemented from
time to time) are referred to herein or in a Prospectus Supplement, such
Sections or defined terms are incorporated herein or therein by reference.
GENERAL
The Debt Securities will be unsecured obligations of Protective Life. The
Debt Securities issued under the Senior Indenture will be unsecured and will
rank PARI PASSU with all other unsecured and unsubordinated obligations of
Protective Life. The Debt Securities issued under the Subordinated Indenture
will be subordinate and junior in right of payment to the extent and in the
manner set forth in the Subordinated Indenture to all Senior Indebtedness of
Protective Life. See "-- Subordination under the Subordinated Indenture." The
Indentures do not limit the aggregate amount of Debt Securities which may be
issued thereunder, nor do they limit the incurrence or issuance of other secured
or unsecured debt of Protective Life.
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Debt
Securities being offered thereby, including: (1) the title of such Debt
Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities will mature or the method of determining such date or
dates; (4) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method of calculating such rate or
rates; (5) the date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined; (6) the date or dates on
which interest, if any, will be payable and the record date or dates therefor;
(7) the place or places where principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable; (8) 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 terms and conditions upon which, such
Debt Securities may be redeemed, in whole or in part, at the option of
Protective Life; (9) the obligation, if any, of Protective Life to redeem or
purchase such Debt Securities pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event and the period or periods
within which, the price or prices at which and the other terms and conditions
upon which, such Debt Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligations; (10) the denominations in which such Debt
Securities are authorized to be issued; (11) the currency or currency unit for
which Debt Securities may be purchased or in which Debt Securities may be
denominated and/ or the currency or currencies (including currency unit or
units) in which principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable and whether Protective Life or the holders of
any such Debt Securities may elect to receive payments in respect of such Debt
Securities in a currency or currency unit other than that in which such Debt
Securities are stated to be payable; (12) if other than the principal amount
thereof, the portion of the principal amount of such Debt Securities which will
be payable upon declaration of the acceleration of the maturity thereof or the
method by which such portion shall be determined; (13) the person to whom any
interest on any such Debt Security shall be payable if other than the person in
whose name such Debt Security is registered on the applicable record date; (14)
any addition to, or modification or deletion of, any Event of Default or any
covenant of Protective Life specified in the Indenture with respect to such Debt
Securities; (15) the application, if any, of such means of defeasance or
covenant defeasance as may be specified for such Debt Securities; (16) whether
such Debt Securities are to be issued in whole or in part in the form of one or
more temporary or permanent global securities and, if so, the identity of the
depository for such global security or securities; and (17) any other special
terms pertaining to such Debt Securities. Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities will not be listed on any
securities exchange. (Section 3.1 of each Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued in fully-registered form without coupons. Where Debt
Securities of any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special Federal
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<PAGE>
income tax considerations, applicable to any such Debt Securities and to payment
on and transfer and exchange of such Debt Securities will be described in the
applicable Prospectus Supplement. Bearer Debt Securities will be transferable by
delivery. (Section 3.5 of each Indenture.)
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Certain Federal income tax consequences and
special considerations applicable to any such Debt Securities will be described
in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, certain Federal income tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
The general provisions of the Indentures do not afford holders of the Debt
Securities protection in the event of a highly leveraged or other transaction
involving Protective Life that may adversely affect holders of the Debt
Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at the
office or agency of Protective Life maintained for that purpose as Protective
Life may designate from time to time, except that, at the option of Protective
Life, interest payments, if any, on Debt Securities in registered form may be
made (i) by checks mailed to the holders of Debt Securities entitled thereto at
their registered addresses or (ii) by wire transfer to an account maintained by
the person entitled thereto as specified in the Register. (Sections 3.7(a) and
9.2 of each Indenture.) Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Debt Securities in
registered form will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest. (Section 3.7(a) of each Indenture.)
Payment in respect of Debt Securities in bearer form will be made in the
currency and in the manner designated in the Prospectus Supplement, subject to
any applicable laws and regulations, at such paying agencies outside the United
States as Protective Life may appoint from time to time. The paying agents
outside the United States initially appointed by Protective Life for a series of
Debt Securities will be named in the Prospectus Supplement. Protective Life may
at any time designate additional paying agents or rescind the designation of any
paying agents, except that, if Debt Securities of a series are issuable as
Registered Securities, Protective Life will be required to maintain at least one
paying agent in each Place of Payment for such series and, if Debt Securities of
a series are issuable as Bearer Securities, Protective Life will be required to
maintain a paying agent in a Place of Payment outside the United States where
Debt Securities of such series and any coupons appertaining thereto may be
presented and surrendered for payment. (Section 9.2 of each Indenture.)
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of Protective Life maintained for such purpose as designated by Protective Life
from time to time. (Sections 3.5 and 9.2 of each Indenture.) Debt Securities may
be transferred or exchanged without service charge, other than any tax or other
governmental charge imposed in connection therewith. (Section 3.5 of each
Indenture.)
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Registered Global
Security") that will be deposited with a depository (the "Depository") or with a
nominee for the Depository identified in the applicable Prospectus Supplement.
In such a case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of
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<PAGE>
the series to be represented by such Registered Global Security or Securities.
(Section 3.3 of each Indenture.) Unless and until it is exchanged in whole or in
part for Debt Securities in definitive certificated form, a Registered Global
Security may not be registered for transfer or exchange except as a whole by the
Depository for such Registered Global Security 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 and except in the
circumstances described in the applicable Prospectus Supplement. (Section 3.5 of
each Indenture.)
The specific terms of the depository arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global Security
will be described in the applicable Prospectus Supplement. Protective Life
expects that the following provisions will apply to depository arrangements.
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depository for such
Registered Global Security, the Depository will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("participants") that have accounts with the Depository or its
nominee. The accounts to be credited will be designated by the underwriters or
agents engaging in the distribution of such Debt Securities or by Protective
Life, if such Debt Securities are offered and sold directly by Protective Life.
Ownership of beneficial interests in a Registered Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Registered Global
Security will be shown on, and the transfer of such beneficial interests will be
effected only through, records maintained by the Depository for such Registered
Global Security or by its nominee. Ownership of beneficial interests in such
Registered Global Security by persons that hold through participants will be
shown on, and the transfer of such beneficial interests within such participants
will be effected only through, records maintained by such participants. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Registered Global Securities.
So long as the Depository for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under each Indenture. Unless otherwise specified in the applicable
Prospectus Supplement and except as specified below, owners of beneficial
interests in such Registered Global Security will not be entitled to have Debt
Securities of the series represented by such Registered Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the holders thereof for any purposes under the relevant Indenture.
(Section 3.8 of each Indenture.) Accordingly, each person owning a beneficial
interest in such Registered Global Security must rely on the procedures of the
Depository and, if such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any rights
of a holder under the relevant Indenture. The Depository may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
is entitled to give or take under the relevant Indenture. Protective Life
understands that, under existing industry practices, if Protective Life requests
any action of holders or any owner of a beneficial interest in such Registered
Global Security desires to give any notice or take any action a holder is
entitled to give or take under the relevant Indenture, the Depository would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
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<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement, payments
with respect to principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name of
a Depository or its nominee will be made to such Depository or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
Protective Life expects that the Depository for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Registered Global Security as shown on the
records of such Depository. Protective Life also expects that payments by
participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names", and will be the
responsibility of such participants. None of Protective Life, the respective
Trustees or any agent of Protective Life or the respective Trustees shall have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests of a Registered Global
Security, or for maintaining, supervising or reviewing any records relating to
such beneficial interests. (Section 3.8 of each Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depository for any Debt Securities represented by a Registered Global Security
is at any time unwilling or unable to continue as Depository and a successor
Depository is not appointed by Protective Life within 90 days, Protective Life
will issue such Debt Securities in definitive certificated form in exchange for
such Registered Global Security. In addition, Protective Life may at any time
and in its sole discretion determine not to have any of the Debt Securities of a
series represented by one or more Registered Global Securities and, in such
event, will issue Debt Securities of such series in definitive certificated form
in exchange for all of the Registered Global Security or Securities representing
such Debt Securities. (Section 3.5 of each Indenture.)
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depository, or with a nominee for such depository,
identified in the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form. (Section 3.4 of each
Indenture.) The specific terms and procedures, including the specific terms of
the depository arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global Securities will be
described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER OR SALE BY PROTECTIVE LIFE
Protective Life shall not consolidate with or merge into any other
corporation or sell its assets substantially as an entirety, unless (i) the
corporation formed by such consolidation or into which Protective Life is merged
or the corporation which acquires its assets is organized in the United States
and expressly assumes all of the obligations of Protective Life under each
Indenture, and (ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing. Upon any such
consolidation, merger or sale, the successor corporation formed by such
consolidation, or into which Protective Life is merged or to which such sale is
made, shall succeed to, and be substituted for Protective Life under each
Indenture. (Section 7.1 of each Indenture.)
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Each Indenture provides that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series and is continuing, the
Trustee for such series or the holders of 25% in aggregate principal amount of
all of the outstanding Debt Securities of that series, by written notice to
Protective Life (and to the Trustee for such series, if notice is given by such
holders of Debt Securities), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount specified in the Prospectus
Supplement) and accrued interest on all the Debt Securities of that series to be
due and payable (provided, with respect to any Debt
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<PAGE>
Securities (including Subordinated Debentures) issued under the Subordinated
Indenture, that the payment of principal and interest on such Debt Securities
shall remain subordinated to the extent provided in Article 12 of the
Subordinated Indenture). (Section 5.2 of each Indenture.)
Events of Default with respect to Debt Securities of any series are defined
in each Indenture as being: (a) default for 30 days in payment of any interest
on any Debt Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to Debt Securities of such series as
specified in the applicable Prospectus Supplement when due; (b) default in
payment of principal, or premium, if any, at maturity or on redemption or
otherwise, or in the making of a mandatory sinking fund payment of any Debt
Securities of that series when due; (c) default for 60 days after notice to
Protective Life by the Trustee for such series, or by the holders of 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding, in the performance of any other agreement in the Debt Securities of
that series, in the Indenture or in any supplemental indenture or board
resolution referred to therein under which the Debt Securities of that series
may have been issued; (d) default in payment of principal relating to
indebtedness of Protective Life and its consolidated subsidiaries for borrowed
money having an aggregate principal amount exceeding $25 million, or other
default resulting in acceleration of indebtedness of Protective Life and its
consolidated subsidiaries for borrowed money where the aggregate principal
amount so accelerated exceeds $25 million and such acceleration is not rescinded
or annulled within 30 days after the written notice thereof to Protective Life
by the Trustee or to Protective Life and the Trustee by the holders of 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding, PROVIDED that such Event of Default will be remedied, cured or
waived if the default that resulted in the acceleration of such indebtedness is
remedied, cured or waived; and (e) certain events of bankruptcy, insolvency or
reorganization of Protective Life or Protective Life Insurance. (Section 5.1 of
each Indenture.) Events of Default with respect to a specified series of Debt
Securities may be added to the Indenture and, if so added, will be described in
the applicable Prospectus Supplement. (Sections 3.1 and 5.1(7) of each
Indenture.)
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of all Defaults
known to it unless such Default shall have been cured or waived; PROVIDED that
except in the case of a Default in payment on the Debt Securities of that
series, the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding such notice is in
the interests of the holders of the Debt Securities of that series. (Section 6.6
of each Indenture.) "Default" means any event which is, or after notice or
passage of time or both, would be, an Event of Default. (Section 1.1 of each
Indenture.)
Each Indenture provides that the holders of a majority in aggregate
principal amount of the Debt Securities of each series affected (with each such
series voting as a class) may, subject to certain limited conditions, direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee for such series, or exercising any trust or power conferred on such
Trustee. (Section 5.8 of each Indenture.)
Each Indenture includes a covenant that Protective Life will file annually
with the Trustee a certificate as to Protective Life's compliance with all
conditions and covenants of such Indenture. (Section 9.5 of each Indenture.)
The holders of a majority in aggregate principal amount of any series of
Debt Securities by notice to the Trustee for such series may waive, on behalf of
the holders of all Debt Securities of such series, any past Default or Event of
Default with respect to that series and its consequences except a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest, if any, on any Debt Security. (Section 5.7 of each Indenture.)
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting Protective Life and the
Trustee to enter into one or more supplemental indentures without the consent of
the holders of any of the Debt Securities in order
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(i) to evidence the succession of another corporation to Protective Life and the
assumption of the covenants of Protective Life by a successor to Protective
Life; (ii) to add to the covenants of Protective Life or surrender any right or
power of Protective Life; (iii) to add additional Events of Default with respect
to any series of Debt Securities; (iv) to add or change any provisions to such
extent as necessary to permit or facilitate the issuance of Debt Securities in
bearer form; (v) to change or eliminate any provision affecting only Debt
Securities not yet issued; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities; (viii) to evidence and provide
for successor Trustees; (ix) if allowed without penalty under applicable laws
and regulations, to permit payment in respect of Debt Securities in bearer form
in the United States; or (x) to correct any defect or supplement any
inconsistent provisions or to make any other provisions with respect to matters
or questions arising under such Indenture or to cure any ambiguity or correct
any mistake, PROVIDED that any such action does not adversely affect the
interests of any holder of Debt Securities of any series. (Section 8.1 of each
Indenture.)
Each Indenture also contains provisions permitting Protective Life and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected by such supplemental
indenture (with the Debt Securities of each series voting as a class), to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of such Indenture or any supplemental
indenture or modifying the rights of the holders of Debt Securities of such
series, except that, without the consent of the holder of each Debt Security so
affected, no such supplemental indenture may: (i) change the time for payment of
principal or premium, if any, or interest on any Debt Security; (ii) reduce the
principal of, or any installment of principal of, or premium, if any, or
interest on any Debt Security, or change the manner in which the amount of any
of the foregoing is determined; (iii) reduce the amount of premium, if any,
payable upon the redemption of any Debt Security; (iv) reduce the amount of
principal payable upon acceleration of the maturity of any Original Issue
Discount or Index Security; (v) change the currency or currency unit in which
any Debt Security or any premium or interest thereon is payable; (vi) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security; (vii) reduce the percentage in principal amount of the
outstanding Debt Securities affected thereby the consent of whose holders is
required for modification or amendment of such Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults; (viii) change the obligation of Protective Life to maintain an office
or agency in the places and for the purposes specified in such Indenture; or
(ix) modify the provisions relating to waiver of certain defaults or any of the
foregoing provisions. (Section 8.2 of each Indenture.)
SUBORDINATION UNDER THE SUBORDINATED INDENTURE
In the Subordinated Indenture, Protective Life will covenant and agree that
any Debt Securities (including Subordinated Debentures) issued thereunder
("Subordinated Debt Securities") are subordinate and junior in right of payment
to all Senior Indebtedness to the extent provided in the Subordinated Indenture.
The Subordinated Indenture defines the term "Senior Indebtedness" as the
principal, premium, if any, and interest on (i) all indebtedness of Protective
Life, whether outstanding on the date of the issuance of Subordinated Debt
Securities or thereafter created, incurred or assumed, which is for money
borrowed, or evidenced by a note or similar instrument given in connection with
the acquisition of any business, properties or assets, including securities,
(ii) any indebtedness of others of the kinds described in the preceding clause
(i) for the payment of which Protective Life is responsible or liable as
guarantor or otherwise and (iii) amendments, renewals, extensions and refundings
of any such indebtedness, unless in any instrument or instruments evidencing or
securing such indebtedness or pursuant to which the same is outstanding, or in
any such amendment, renewal, extension or refunding, it is expressly provided
that such indebtedness is not superior in right of payment to Subordinated Debt
Securities. The Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
If (i) Protective Life defaults in the payment of any principal, or premium,
if any, or interest on any Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default occurs with respect to any Senior
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Indebtedness permitting the holders thereof to accelerate the maturity thereof
and written notice of such event of default (requesting that payments on
Subordinated Debt Securities cease) is given to Protective Life by the holders
of Senior Indebtedness, then unless and until such default in payment or event
of default shall have been cured or waived or shall have ceased to exist, no
direct or indirect payment (in cash, property or securities, by set-off or
otherwise) shall be made or agreed to be made on account of the Subordinated
Debt Securities or interest thereon or in respect of any repayment, redemption,
retirement, purchase or other acquisition of Subordinated Debt Securities.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to Protective Life, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of Protective Life, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by Protective Life for the benefit of creditors or (iv) any
other marshalling of the assets of Protective Life, all Senior Indebtedness
(including, without limitation, interest accruing after the commencement of any
such proceeding, assignment or marshalling of assets) shall first be paid in
full before any payment or distribution, whether in cash, securities or other
property, shall be made by Protective Life on account of Subordinated Debt
Securities. In any such event, any payment or distribution, whether in cash,
securities or other property (other than securities of Protective Life or any
other corporation provided for by a plan of reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in the
subordination provisions of the Subordinated Indenture with respect to the
indebtedness evidenced by Subordinated Debt Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of Subordinated Debt Securities (including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of Protective Life being subordinated to the payment of
Subordinated Debt Securities) shall be paid or delivered directly to the holders
of Senior Indebtedness, or to their representative or trustee, in accordance
with the priorities then existing among such holders until all Senior
Indebtedness shall have been paid in full. No present or future holder of any
Senior Indebtedness shall be prejudiced in the right to enforce subordination of
the indebtedness evidenced by Subordinated Debt Securities by any act or failure
to act on the part of Protective Life.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the holders of Subordinated Debt Securities
shall be subrogated to all the rights of any holders of Senior Indebtedness to
receive any further payments or distributions applicable to the Senior
Indebtedness until all Subordinated Debt Securities shall have been paid in
full, and such payments or distributions received by any holder of Subordinated
Debt Securities, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between Protective Life and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the holders of Subordinated
Debt Securities, on the other, be deemed to be a payment by Protective Life on
account of Senior Indebtedness, and not on account of Subordinated Debt
Securities.
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated Debt
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Subordinated Debt
Securities.
DEFEASANCE AND COVENANT DEFEASANCE
If indicated in the applicable Prospectus Supplement, Protective Life may
elect either (i) to defease and be discharged from any and all obligations with
respect to the Debt Securities of or within any series (except as otherwise
provided in the relevant Indenture) ("defeasance") or (ii) to be released from
its obligations with respect to certain covenants applicable to the Debt
Securities of or within any series
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("covenant defeasance"), upon the deposit with the relevant Trustee (or other
qualifying trustee), in trust for such purpose, of money and/or Government
Obligations which through the payment of principal and interest in accordance
with their terms will provide money in an amount sufficient, without
reinvestment, to pay the principal of and any premium or interest on such Debt
Securities to Maturity or redemption, as the case may be, and any mandatory
sinking fund or analogous payments thereon. As a condition to defeasance or
covenant defeasance, Protective Life must deliver to the Trustee an Opinion of
Counsel to the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance or covenant defeasance and will be subject to Federal income tax
on the same amounts and in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance had not occurred. Such
Opinion of Counsel, in the case of defeasance under clause (i) above, must refer
to and be based upon a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the date of the relevant
Indenture. Additional conditions to defeasance include (x) delivery by
Protective Life to the Trustee of an Officer's Certificate to the effect that
neither such Debt Securities nor any other Debt Securities of the same series,
if then listed on any securities exchange, will be delisted as a result of such
defeasance, (y) no Event of Default with respect to such Debt Securities or any
other Debt Securities occurring or continuing at the time of such defeasance or,
in the case of certain bankruptcy Events of Default, at any time on or prior to
the 90th day after the date of such defeasance and (z) such defeasance not
resulting in the trust arising from the deposit of any moneys in respect of such
defeasance constituting an "investment company" within the meaning of the
Investment Company Act unless such trust shall be registered under such Act or
exempt from registration thereunder. (Article 4 of each Indenture.) If indicated
in the applicable Prospectus Supplement, in addition to obligations of the
United States or an agency or instrumentality thereof, Government Obligations
may include obligations of the government or an agency or instrumentality of the
government issuing the currency or currency unit in which Debt Securities of
such series are payable. (Section 3.1 of each Indenture.)
In addition, with respect to the Subordinated Indenture, in order to be
discharged no event or condition shall exist that, pursuant to certain
provisions described under "-- Subordination under the Subordinated Indenture"
above, would prevent Protective Life from making payments of principal of (and
premium, if any) and interest on Subordinated Debt Securities at the date of the
irrevocable deposit referred to above.
Protective Life may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance option.
If Protective Life exercises its defeasance option, payment of such Debt
Securities may not be accelerated because of a Default or an Event of Default.
If Protective Life exercises its covenant defeasance option, payment of such
Debt Securities may not be accelerated by reason of a Default or an Event of
Default with respect to the covenants to which such covenant defeasance is
applicable. However, if such acceleration were to occur by reason of another
Event of Default, the realizable value at the acceleration date of the money and
Government Obligations in the defeasance trust could be less than the principal
and interest then due on such Debt Securities, in that the required deposit in
the defeasance trust is based upon scheduled cash flow rather than market value,
which will vary depending upon interest rates and other factors.
THE TRUSTEES
The Bank of New York is the Trustee under the Senior Indenture. AmSouth Bank
NA is the Trustee under the Subordinated Indenture. Protective Life may also
maintain banking and other commercial relationships with each of the Trustees
and their affiliates in the ordinary course of business.
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DESCRIPTION OF CAPITAL STOCK OF PROTECTIVE LIFE
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
At December 31, 1993, the authorized capital stock of Protective Life was
21,000,000 shares, consisting of:
(a) 850,000 shares of Preferred Stock, par value $1.00 per share, of
which no shares were outstanding;
(b) 150,000 shares of Junior Participating Cumulative Preferred Stock,
par value $1.00 per share (the "Junior Preferred Stock"), of which no shares
were outstanding; and
(c) 20,000,000 shares of Common Stock, par value $.50 per share (the
"Common Stock"), of which 13,693,244 shares were outstanding.
In general, the classes of authorized capital stock are afforded preferences
with respect to dividends and liquidation rights in the order listed above. The
Board of Directors of Protective Life is empowered, without approval of the
stockholders, to cause the Preferred Stock to be issued in one or more series,
with the numbers of shares of each series and the rights, preferences and
limitations of each series to be determined by it. The specific matters that may
be determined by the Board of Directors include the dividend rights, conversion
rights, redemption rights and liquidation preferences, if any, of any wholly
unissued series of Preferred Stock (or of the entire class of Preferred Stock if
none of such shares have been issued), the number of shares constituting any
such series and the terms and conditions of the issue thereof. The descriptions
set forth below do not purport to be complete and are qualified in their
entirety by reference to the Restated Certificate of Incorporation of Protective
Life, as amended (the "Restated Certificate of Incorporation").
In the proxy statement for the Annual Meeting of stockholders of Protective
Life to be held on May 2, 1994, the Board of Directors of Protective Life will
submit to the stockholders a resolution approving an amendment to the Restated
Certificate of Incorporation which would increase the number of shares of
authorized Common Stock from 20,000,000 to 80,000,000 and the number of shares
of authorized Preferred Stock from 1,000,000 to 4,000,000.
No holders of any class of Protective Life's capital stock are entitled to
preemptive rights.
PREFERRED STOCK
The particular terms of any series of Preferred Stock offered hereby
("Offered Preferred Stock") will be set forth in the Prospectus Supplement
relating thereto. The rights, preferences, privileges and restrictions,
including dividend rights, voting rights, terms of redemption and liquidation
preferences, of the Offered Preferred Stock of each series will be fixed or
designated pursuant to a certificate of designation adopted by the Board of
Directors or a duly authorized committee thereof. The description of the terms
of a particular series of Offered Preferred Stock that will be set forth in a
Prospectus Supplement does not purport to be complete and is qualified in its
entirety by reference to the certificate of designation relating to such series.
JUNIOR PREFERRED STOCK
The Junior Preferred Stock may be issued to holders of the Common Stock
under certain circumstances pursuant to rights granted under Protective Life's
Rights Agreement, dated July 13, 1987, entered into with AmSouth Bank N.A. (the
"Share Purchase Rights Plan"). Protective Life can redeem the rights at $.01 per
right (subject to adjustment to reflect any stock split, stock dividend or
similar transaction) until the earlier of July 28, 1997 (expiration date of
rights) or ten business days following a public announcement that 20% or more of
the Common Stock has been acquired by one or more associated or affiliated
persons. If, after the rights become exercisable, Protective Life becomes
involved in a merger or certain other major corporate transactions, each right
then outstanding (other than those held by the 20% holder) would entitle its
holder to buy from Protective Life or its successor Common Stock of the acquiror
or Protective Life or its successor worth twice the exercise price.
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CERTAIN OTHER PROVISIONS OF PROTECTIVE LIFE'S
RESTATED CERTIFICATE OF INCORPORATION
Protective Life's Restated Certificate of Incorporation contains a "fair
price" provision which generally requires that certain "Business Combinations"
with a "Related Person" (generally the beneficial owner of at least 20 percent
of Protective Life's voting stock) be approved by the holders of at least 80
percent of Protective Life's voting stock and the holders of at least 67 percent
of the voting stock held by stockholders other than such Related Person, unless
(a) the transaction is approved by at least a majority of the "Continuing
Directors" of Protective Life, or (b) the Business Combination is either a
"Reorganization" or a Business Combination in which Protective Life is the
surviving corporation and, in either event, the cash or fair market value of the
property, securities or other consideration to be received per share as a result
of the Business Combination by holders of the Common Stock of Protective Life
other than the Related Person is not less than the highest per share price (with
appropriate adjustments for recapitalizations and for stock splits, stock
dividends and like distributions) paid by such Related Person in acquiring any
holdings of Protective Life's Common Stock either in or subsequent to the
transaction or series of transactions by reason of which the Related Person
became a Related Person. Protective Life's Restated Certificate of Incorporation
defines "Business Combination" as (i) any Reorganization of Protective Life or a
subsidiary of Protective Life, (ii) any sale, lease, exchange, transfer or other
disposition, including without limitation a pledge, mortgage or any other
security device, of all or any "Substantial Part" of the assets either of
Protective Life or of a subsidiary of Protective Life, (iii) any sale, lease,
exchange, transfer or other disposition of all or any "Substantial Part" of the
assets of an entity to Protective Life or a subsidiary of Protective Life, (iv)
the issuance of any securities of Protective Life or any subsidiary of
Protective Life except if such issuance were a stock split, stock dividend or
other distribution pro rata to all holders of the same class of voting stock,
(v) any recapitalization or reclassification of Protective Life's securities
(including any reverse stock split) that would have the effect of increasing the
voting power of an entity and (vi) any agreement, contract, plan or other
arrangement providing for any of the transactions described in the definition of
Business Transaction. "Continuing Director" is defined to mean a director who
was a member of the Board of Directors of Protective Life immediately prior to
the time such Related Person became a Related Person. "Substantial Part" is
defined as more than 20 percent of the fair market value of the total assets of
the corporation in question, as determined in good faith by a majority of the
Continuing Directors as of the end of its most recent fiscal year ending prior
to the time the determination is being made. "Reorganization" is defined to mean
a merger, consolidation, plan of exchange, sale of all or substantially all of
the assets (including, as pertains to a subsidiary of Protective Life, bulk
reinsurance or cession of substantially all of its policies and contracts) or
other form of corporate reorganization pursuant to which shares of voting stock,
or other securities of the subject corporation, are to be converted or exchanged
into cash or other property, securities or other consideration.
GENERAL
The foregoing statements are summaries of certain provisions contained in
the Restated Certificate of Incorporation of Protective Life, the form of which
is filed as an exhibit to the Registration Statement of which this Prospectus is
a part. They do not purport to be complete statements of all the terms and
provisions of the Restated Certificate of Incorporation, and reference is hereby
made to the Restated Certificate of Incorporation for full and complete
statements of such terms and provisions, including the definitions of certain
terms used herein. Whenever reference has been made to the Restated Certificate
of Incorporation, such Restated Certificate of Incorporation shall be deemed to
be incorporated in such statements as a part thereof and such statements are
qualified in their entirety by such reference.
The transfer agent and registrar of the Common Stock is AmSouth Bank NA.
DESCRIPTION OF PREFERRED SECURITIES OF PLC CAPITAL
PLC Capital is authorized to issue from time to time Preferred Securities in
one or more series, with such dividend rights, liquidation preferences,
redemption provisions, voting rights and other rights,
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powers and duties as shall be established by the L.L.C. Agreement and written
actions (the "Actions") taken, or to be taken, by the Managing Member
establishing such rights, powers and duties (which Actions, when taken,
constitute an amendment to, and become a part of, the L.L.C. Agreement). The
L.L.C. Agreement has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, and a copy of the Action relating to
Preferred Securities of any series will be filed with the Commission at or prior
to the time of the sale of the Preferred Securities of such series. Preferred
Securities will be issued in registered form only.
The Managing Member is authorized, subject to the provisions of the L.L.C.
Agreement, to establish by Actions for each series of Preferred Securities, and
the applicable Prospectus Supplement shall set forth with respect to such
series: (i) the number of Preferred Securities to constitute such series and the
distinctive designation thereof; (ii) the dividend rate, the conditions and
dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any other class of
Membership Securities or on any other series of Preferred Securities, and
whether such dividends shall be cumulative or noncumulative; (iii) whether the
Preferred Securities of such series shall be subject to redemption, and, if so,
the times, prices and other terms and conditions thereof; (iv) the rights of the
holders of Preferred Securities of such series upon the dissolution, liquidation
or winding-up of PLC Capital; (v) whether the Preferred Securities of such
series shall be subject to a retirement or sinking fund, and, if so, the extent,
terms and provisions relative to the operation thereof; (vi) whether the
Preferred Securities of any series shall be convertible into, or exchangeable
for, Membership Securities of any other class or series or securities of any
other kind, including securities issued by Protective Life or any of its
affiliates, and, if so, the price or rate of conversion or exchange and any
method of adjusting the same; (vii) the limitations and restrictions, if any, to
be applicable while any Preferred Securities of such series are outstanding upon
the payment of dividends or making of other distributions on, and upon the
purchase, redemption or other acquisition by PLC Capital of, Common Securities
or any other class of Membership Securities or any other series of Preferred
Securities ranking junior to the Preferred Securities of such series either as
to dividends or upon liquidation; (viii) the conditions or restrictions, if any,
upon the creation of indebtedness of PLC Capital or upon the issue of any
additional Membership Securities (including additional Preferred Securities of
such series or of any other series) ranking on a parity with or prior to the
Preferred Securities of such series as to dividends or distributions of assets
upon liquidation; (ix) the voting rights, if any, of Preferred Securities of
such series; and (x) any other relative rights, powers and duties as shall not
be inconsistent with the L.L.C. Agreement. In connection with the foregoing the
Managing Member is authorized to take any action, including amendment of the
L.L.C. Agreement, without the vote or approval of any holder of Preferred
Securities (other than the requisite vote or approval, if any, of holders of any
outstanding series of Preferred Securities to the extent provided in the Action
relating to such series), including any Action to create under the provisions of
the L.L.C. Agreement a class (or series of a class) or group of Membership
Securities that was not previously outstanding.
All Preferred Securities of any one series shall be identical with each
other in all respects, except that Preferred Securities of any one series issued
at different times may differ as to the dates from which dividends, if any,
thereon shall be cumulative. All series of Preferred Securities shall rank
equally and be identical in all respects, except as permitted by the L.L.C.
Agreement provisions summarized in the preceding paragraph, and all Preferred
Securities shall rank senior to the Common Securities both as to dividends and
upon liquidation. The Common Securities are also subject to all the rights,
powers and duties of the Preferred Securities as are established in the L.L.C.
Agreement and as shall be established in any Actions of the Managing Member
pursuant to the authority summarized in the preceding paragraph.
DESCRIPTION OF CERTAIN CONTRACTUAL BACK-UP OBLIGATIONS OF PROTECTIVE LIFE
THE GUARANTEE OF CERTAIN PAYMENTS
Protective Life, by an irrevocable and unconditional subordinated guarantee
(the "Guarantee"), will agree, to the limited extent set forth herein and in the
related Prospectus Supplement, to pay in full, to the
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holders of Preferred Securities of any series, the Guarantee Payments (as
defined below), as and when due, regardless of any defense, right of set-off or
counterclaim which PLC Capital may have or assert. The Guarantee will constitute
a guarantee of payment and may be enforced by holders of Preferred Securities
directly against Protective Life. The following payments to the extent not made
by PLC Capital (the "Guarantee Payments") will be subject to the Guarantee
(without duplication): (i) any accumulated and unpaid dividends which have
theretofore been declared on the Preferred Securities of such series out of
funds held by PLC Capital and legally available therefor; (ii) the redemption
price (including all accumulated and unpaid dividends whether or not declared)
payable, out of funds held by PLC Capital and legally available therefor, with
respect to any Preferred Securities of such series called for redemption by PLC
Capital; and (iii) in the event of any dissolution, liquidation or winding-up of
PLC Capital, the lesser of (a) the aggregate of the liquidation preference of
the Preferred Securities of such series and all accumulated and unpaid dividends
(whether or not declared) to the date of payment and (b) the amount of remaining
assets of PLC Capital legally available to holders of Preferred Securities of
such series. In addition, Protective Life will unconditionally and irrevocably
guarantee, in the event of any exchange by PLC Capital of Preferred Securities
for Subordinated Debentures (to the extent permitted by the Action for such
Preferred Securities), delivery of certificates representing the proper amount
of such Subordinated Debentures in conformity with the Action for such series.
Protective Life's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by Protective Life to the holders of
Preferred Securities of such series or by causing PLC Capital to pay such
amounts to such holders. The Prospectus Supplement relating to a series of
Preferred Securities will describe any additional covenants or other terms of
the Guarantee with respect to such series. The Guarantee will rank PARI PASSU
with Subordinated Debentures and, accordingly, will be subordinate and junior in
right of payment to all Senior Indebtedness in a manner identical to that
described under "Description of Debt Securities of Protective Life --
Subordination under the Subordinated Indenture." A copy of the Guarantee
Agreement pursuant to which the Guarantee will be made has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part.
THE GUARANTEE IS NOT A GUARANTEE THAT ANY PARTICULAR DIVIDEND OR AMOUNT ON
LIQUIDATION, DISSOLUTION OR WINDING UP WILL BE PAID; RATHER, THE GUARANTEE IS
SOLELY A GUARANTEE OF PAYMENT OF DIVIDENDS, IF ANY, THAT ARE IN FACT DECLARED
OUT OF FUNDS HELD BY PLC CAPITAL AND LEGALLY AVAILABLE THEREFOR, OF THE
REDEMPTION PRICE PAYABLE, OUT OF FUNDS HELD BY PLC CAPITAL AND LEGALLY AVAILABLE
THEREFOR, WITH RESPECT TO ANY SERIES A PREFERRED SECURITIES CALLED FOR
REDEMPTION BY PLC CAPITAL AND OF AMOUNTS, IF ANY, AVAILABLE FOR DISTRIBUTION TO
THE HOLDERS OF SERIES A PREFERRED SECURITIES UPON LIQUIDATION, DISSOLUTION OR
WINDING UP AFTER PAYMENT TO ALL CREDITORS OF PLC CAPITAL OF ALL AMOUNTS DUE TO
THEM.
SUBORDINATED DEBENTURES
Protective Life will issue Subordinated Debentures to PLC Capital to
evidence the loans to be made by PLC Capital of the proceeds of (i) Preferred
Securities of each series and (ii) Common Securities and related capital
contributions ("Common Securities Payments"). See "Description of Debt
Securities of Protective Life" for a summary of the material provisions of the
Subordinated Indenture, under which the Subordinated Debentures will be issued.
References to provisions of the Subordinated Indenture in this Prospectus and in
the relevant Prospectus Supplement are qualified in their entirety by reference
to the text of the Subordinated Indenture, a4 form of which has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part. The
aggregate dollar amount of the Subordinated Debentures relating to Preferred
Securities of any series will be set forth in the Prospectus Supplement for such
series and will equal the aggregate liquidation preference of the Preferred
Securities of such series, together with the related Common Securities Payments.
16
<PAGE>
PLAN OF DISTRIBUTION
Protective Life may sell any of the Debt Securities and Preferred Stock, and
PLC Capital may sell any of the Preferred Securities, being offered hereby in
any one or more of the following ways from time to time: (i) through agents;
(ii) to or through underwriters; (iii) through dealers; and (iv) directly by
Protective Life or PLC Capital, as the case may be, to purchasers.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Offered Securities may be solicited by agents designated
by Protective Life or PLC Capital, as the case may be, from time to time. Any
such agent involved in the offer or sale of the Offered Securities in respect of
which this Prospectus is delivered will be named, and any commissions payable by
Protective Life or PLC Capital to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the Offered
Securities so offered and sold.
If Offered Securities are sold by means of an underwritten offering,
Protective Life and/or PLC Capital will execute an underwriting agreement with
an underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Offered Securities in respect of
which this Prospectus is delivered to the public. If underwriters are utilized
in the sale of the Offered Securities in respect of which this Prospectus is
delivered, the Offered Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriter at the time of sale. Offered Securities may
be offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Offered Securities,
unless otherwise indicated in the Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
Offered Securities will be obligated to purchase all such Offered Securities if
any are purchased.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, Protective Life or PLC Capital, as the case
may be, will sell such Offered Securities to the dealer as principal. The dealer
may then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Offered Securities so offered and sold. The name of the dealer and the terms of
the transaction will be set forth in the Prospectus Supplement relating thereto.
Offers to purchase Offered Securities may be solicited directly by
Protective Life or PLC Capital, as the case may be, and the sale thereof may be
made by Protective Life or PLC Capital, as the case may be, directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the Prospectus Supplement relating
thereto.
Agents, underwriters and dealers may be entitled under relevant agreements
to indemnification or contribution by Protective Life and/or PLC Capital against
certain liabilities, including liabilities under the Securities Act.
17
<PAGE>
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Protective Life and its subsidiaries (including
PLC Capital) in the ordinary course of business.
Offered Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as agents for Protective Life or PLC Capital, as the case may be.
Any remarketing firm will be identified and the terms of its agreement, if any,
with Protective Life or PLC Capital and its compensation will be described in
the Prospectus Supplement. Remarketing firms may be deemed to be underwriters,
as such term is defined in the Securities Act, in connection with the Offered
Securities remarketed thereby. Remarketing firms may be entitled under
agreements which may be entered into with Protective Life to indemnification or
contribution by Protective Life and/or PLC Capital against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for Protective
Life and its subsidiaries (including PLC Capital) in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, Protective Life or
PLC Capital, as the case may be, may authorize agents, underwriters or dealers
to solicit offers by certain institutions to purchase Offered Securities from
Protective Life or PLC Capital, as the case may be, at the public offering
prices set forth in the applicable Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on a
specified date or dates. A commission indicated in the applicable Prospectus
Supplement will be paid to underwriters, dealers and agents soliciting purchases
of Offered Securities pursuant to Contracts accepted by Protective Life.
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of any Offered Securities offered hereby and of the Guarantee and the
Subordinated Debentures relating to any Preferred Securities of PLC Capital
offered hereby will be passed upon for Protective Life and PLC Capital by
Debevoise & Plimpton, 875 Third Avenue, New York, New York and for any
underwriters or agents by Sullivan & Cromwell, 125 Broad Street, New York, New
York. Debevoise & Plimpton and Sullivan & Cromwell may rely upon Richards,
Layton & Finger, P.A., special Delaware counsel to Protective Life and PLC
Capital, as to all matters of Delaware law relating to any Preferred Securities.
EXPERTS
The consolidated balance sheets of Protective Life as of December 31, 1993
and 1992 and the related consolidated statements of income, stockholder's equity
and cash flows for each of the three years in the period ended December 31, 1993
and the related financial statement schedules which are incorporated by
reference or included in Protective Life's Annual Report on Form 10-K for the
year ended December 31, 1993 and which have been incorporated by reference in
this Prospectus, have been incorporated herein in reliance on the report, which
includes an explanatory paragraph with respect to changes in Protective Life's
methods of accounting for certain investments in debt and equity securities in
1993 and postretirement benefits other than pensions in 1992, of Coopers &
Lybrand, independent accountants, given on the authority of that firm as experts
in accounting and auditing.
The financial statements of Wisconsin National Life Insurance Company as of
December 31, 1992 and 1991, and for each of the years in the two year period
ended December 31, 1992, incorporated by reference in or included in Protective
Life's Current Report on Form 8-K, dated August 4, 1993, have been incorporated
herein by reference in reliance upon the reports of KPMG Peat Marwick,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
18
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE
OFFER HEREUNDER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PROTECTIVE LIFE CORPORATION, PLC
CAPITAL L.L.C. OR THE UNDERWRITERS. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY THE SERIES A PREFERRED SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS OR IN THE AFFAIRS OF PROTECTIVE LIFE CORPORATION OR
PLC CAPITAL L.L.C. SINCE THE DATE HEREOF.
----------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
PLC Capital L.L.C.............................. S-3
Protective Life Corporation.................... S-3
Certain Investment Considerations.............. S-5
Capitalization of Protective Life.............. S-8
Use of Proceeds................................ S-8
Selected Consolidated Financial Data of
Protective Life Corporation.................. S-9
Terms of the Series A Preferred Securities..... S-10
Description of the Guarantee................... S-19
Description of the Series A Subordinated
Debentures................................... S-21
Certain Federal Tax Considerations............. S-25
ERISA Matters.................................. S-27
Underwriting................................... S-28
Legal Opinions................................. S-29
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
Protective Life Corporation.................... 3
PLC Capital L.L.C. ............................ 4
Use of Proceeds................................ 4
Ratio of Consolidated Earnings to Fixed
Charges...................................... 4
Description of Debt Securities of Protective
Life......................................... 4
Description of Capital Stock of Protective
Life......................................... 12
Certain Other Provisions of Protective Life's
Restated Certificate of Incorporation........ 13
Description of Preferred Securities of PLC
Capital...................................... 14
Description of Certain Contractual Back-Up
Obligations of Protective Life............... 15
Plan of Distribution........................... 16
Legal Opinions................................. 18
Experts........................................ 18
</TABLE>
[ ] PREFERRED SECURITIES
PLC CAPITAL L.L.C.
GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY
PROTECTIVE LIFE CORPORATION
% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES,
SERIES A ("MIPS")
-----------
PROSPECTUS SUPPLEMENT
-----------
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
KIDDER, PEABODY & CO.
INCORPORATED
THE ROBINSON-HUMPHREY
COMPANY, INC.
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth those expenses to be incurred by Protective
Life in connection with the issuance and distribution of the securities being
registered. Except for the Securities and Exchange Commission filing fee, all
amounts shown are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee..................... $ 60,345
Rating agency fees................................................
Fees and expenses of Trustee......................................
Blue Sky and legal investment fees and expenses...................
Printing and engraving expenses engraving.........................
Accountant's fees and expenses....................................
New York Stock Exchange filing fees...............................
Legal fees and expenses...........................................
Miscellaneous expenses............................................
---------
Total......................................................... $
---------
---------
<FN>
- ------------------------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 6.5 of Article VI of Protective Life's Restated Certificate of
Incorporation provides that Protective Life shall indemnify to the fullest
extent permitted by law any person who is made or is threatened to be made a
party or is involved in any action, suit, or proceeding whether civil, criminal,
administrative or investigative by reason of the fact that he is or was a
director, officer, employee or agent of Protective Life or was serving at the
request of Protective Life as an officer, director, employee or agent of another
corporation, partnership, joint venture, enterprise, or nonprofit entity.
Protective Life is empowered by Section 145 of the Delaware General
Corporation Law, subject to the proceedings and limitations stated therein, to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of Protective Life) by reason of the fact that such person is or was
an officer, employee, agent or director of Protective Life, or is or was serving
at the request of Protective Life as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of Protective
Life, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. Protective Life may indemnify any
such person against expenses (including attorneys' fees) in an action by or in
the right of Protective Life under the same conditions, except that no
indemnification is permitted without judicial approval if such person is
adjudged to be liable to Protective Life. To the extent such person is
successful on the merits or otherwise in the defense of any action referred to
above, Protective Life must indemnify him against the expenses which he actually
and reasonably incurred in connection therewith.
Policies of insurance are maintained by Protective Life under which
directors and officers of Protective Life are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
II-1
<PAGE>
As permitted by Section 102 (b)(7) of the Delaware General Corporation Law,
Protective Life's Restated Certificate of Incorporation also provides that no
director shall be personally liable to Protective Life or its stockholders for
monetary damages for any breach of fiduciary duty by such director as a
director, except (i) for breach of the director's duty of loyalty to Protective
Life or its stockholders, (ii) for acts or omissions not in good faith which
involve intentional misconduct or a knowing notation of law, (iii) under Section
174 of the Delaware General Corporation Law or (iv) for any transaction from
which the director derived an improper personal benefit.
Protective Life has entered into indemnity agreements with each of its
directors which provide insurance protection in excess of the directors' and
officers' liability insurance maintained by Protective Life and in force at the
time up to $20 million and against certain liabilities excluded from such
liability insurance. The agreements provide generally that, upon the happening
of certain events constituting a change in control of Protective Life,
Protective Life must obtain a $20 million letter of credit upon which the
directors may draw for defense or settlement of any claim relating to
performance of their duties as directors. Protective Life has similar agreements
with certain of its executive officers under which Protective Life is required
to provide up to $10 million in indemnification, although this obligation is not
secured by a commitment to obtain a letter of credit.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
(A) RULE 415 OFFERING.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
Protective Life pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Protective Life's annual report pursuant to Section 13(a) or 15(d)
II-2
<PAGE>
of the Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(C) RULE 430A OFFERING.
The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by Protective Life pursuant to Rule 424(b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(D) ACCELERATION OF EFFECTIVENESS.
Insofar as indemnifications for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons, if any,
of the registrant pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Protective Life of expenses
incurred or paid by a director, officer or controlling person of Protective Life
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PROTECTIVE LIFE
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF
ALABAMA, ON APRIL 15, 1994.
PROTECTIVE LIFE CORPORATION
(Registrant)
By: /S/ DRAYTON NABERS, JR.
--------------------------------------
Drayton Nabers, Jr.
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PLC CAPITAL
L.L.C. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 2
TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF ALABAMA, ON APRIL
15, 1994.
PLC CAPITAL L.L.C.
(Registrant)
By PROTECTIVE LIFE CORPORATION
as Managing Member
By: /S/ DRAYTON NABERS, JR.
--------------------------------------
Drayton Nabers, Jr.
President and Chief Executive
Officer
II-4
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 2 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES WITH PROTECTIVE LIFE CORPORATION AND THE MANAGING MEMBER
INDICATED:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ---------------------------------- ------------------------------
<C> <S> <C>
/s/ DRAYTON NABERS, JR. President and Chief Executive
---------------------------------- Officer (Principal Executive April 15, 1994
Drayton Nabers, Jr. Officer) and Director
/s/ JOHN D. JOHNS Executive Vice President and Chief
---------------------------------- Financial Officer (Principal April 15, 1994
John D. Johns Financial Officer)
/s/ JERRY W. DEFOOR Vice President and Controller and
---------------------------------- Chief Accounting Officer April 15, 1994
Jerry W. DeFoor (Principal Accounting Officer)
*
---------------------------------- Chairman of the Board and Director
William J. Rushton III
*
---------------------------------- Director
John W. Woods
*
---------------------------------- Director
Crawford T. Johnson III
*
---------------------------------- Director
William J. Cabaniss, Jr.
*
---------------------------------- Director
H.G. Pattillo
*
---------------------------------- Director
Edward L. Addison
*
---------------------------------- Director
John J. McMahon, Jr.
*
---------------------------------- Director
A.W. Dahlberg
*
---------------------------------- Director
John W. Rouse, Jr.
*
---------------------------------- Director
Robert T. David
*
---------------------------------- Director
Ronald L. Kuehn, Jr.
*
---------------------------------- Director
Herbert A. Sklenar
*By /s/ DEBORAH J. LONG
---------------------------
Deborah J. Long
Attorney-in-Fact
April 15, 1994
</TABLE>
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
EXHIBITS
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
PROTECTIVE LIFE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
PLC CAPITAL L.L.C.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NO.
- ------------- --------------------------------------------------------------------------------------------------- -----
<S> <C> <C>
1(a) Form of Underwriting Agreement -- Debt Securities..................................................
1(b) Form of Underwriting Agreement -- Preferred Stock..................................................
1(c) Form of Underwriting Agreement -- Preferred Securities.............................................
*4(a) 1985 Restated Certificate of Incorporation of Protective Life Corporation (incorporated by
reference to Exhibit 3(a) to Protective Life Corporation's Form 10-K Annual Report for the year
ended December 31, 1993)..........................................................................
*4(a)(1) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life
Corporation (incorporated by reference to Exhibit 3(a)(1) to Protective Life Corporation's Form
10-K Annual Report for the year ended December 31, 1993)..........................................
*4(a)(2) Certificate of Designation of Junior Participating Cumulative Preferred Stock of Protective Life
Corporation filed with the Secretary of State of Delaware on July 14, 1987 (incorporated by
reference to Exhibit A to Protective Life Corporation's Form 8-K Report filed July 15, 1987)......
*4(a)(3) Certificate of Correction of Certificate of Designation of Junior
Participating Cumulative Preferred Stock of the Company filed with the Secretary of State of
Delaware on July 27, 1987 (incorporated by reference to Exhibit 3(a)(4) to Protective Life
Corporation's Form 10-K Annual Report for the year ended December 31, 1987).......................
*4(b) Amended By-Laws of Protective Life Corporation, as amended (incorporated by reference to Exhibit B
to Protective Life Corporation's Form 8-K Report, filed May 18, 1983).............................
*4(c) Certificate of Formation of PLC Capital L.L.C......................................................
4(d) Form of Amended and Restated Limited Liability Company Agreement of PLC Capital L.L.C..............
4(e) Form of Action establishing the Series A Preferred Securities (included as Annex A to Exhibit
4(d)).............................................................................................
4(f) Specimen Series A Preferred Security Certificate (included as Annex B to Exhibit 4(d)).............
4(g) Form of Senior Indenture between Protective Life Corporation and The Bank of New York, as
Trustee...........................................................................................
4(h) Form of Subordinated Indenture between Protective Life Corporation and AmSouth Bank NA, as
Trustee...........................................................................................
4(i) Form of Guarantee Agreement between Protective Life Corporation and PLC Capital L.L.C..............
**5(a) Opinion of Debevoise & Plimpton, counsel to Protective Life Corporation and PLC Capital L.L.C., as
to legality of the Debt Securities, the Preferred Stock, the Guarantee and the Preferred
Securities........................................................................................
**5(b) Opinion of Richards, Layton & Finger, special Delaware counsel to Protective Life Corporation and
PLC Capital, as to legality of the Preferred Securities...........................................
**8(a) Opinion of Debevoise & Plimpton, as to United States tax matters...................................
*12(a) Computation of Ratio of Earnings to Fixed Charges..................................................
*23(a) Consent of Coopers & Lybrand.......................................................................
*23(b) Consent of KPMG Peat Marwick.......................................................................
**23(c) Consent of Debevoise & Plimpton (included in Exhibits 5(a) and 8(a))...............................
**23(d) Consent of Richards, Layton & Finger (included in Exhibit 5(b))....................................
*24(c) Power of Attorney of Board of Directors............................................................
*25(a) Statement of Eligibility of Trustee on Form T-1 (The Bank of New York).............................
25(b) Statement of Eligibility of Trustee on Form T-1 (AmSouth Bank NA)..................................
</TABLE>
- ------------------------
* Previously filed.
** To be filed by amendment.
<PAGE>
DRAFT OF APRIL 14, 1994
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
. . . . . . . . . . . . , 1994
To the Representatives of the
several Underwriters 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 (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to 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
<PAGE>
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of 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 [other
than ____]; 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 became
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 became 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
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Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
from any action, order or decree of any court or insurance regulatory or
other governmental authority, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity,
total surplus (if applicable) or results of operations of the Company and
its subsidiaries (in the case of the Company's subsidiaries engaged in the
business of insurance (each an "Insurance Subsidiary," and collectively,
the "Insurance Subsidiaries"), on either a statutory or GAAP basis), 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
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<PAGE>
is not required to be qualified as a foreign corporation for the
transaction of business under the laws of any other jurisdiction, or is
subject to no material liability by reason of the failure to be so
qualified in any such jurisdiction;
(f) Each of the Company's subsidiaries 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) The Company and each Insurance Subsidiary have made all required
filings under applicable insurance holding company statutes, and each is
duly licensed or authorized as an insurance holding company in each
jurisdiction where it is required to be so licensed or authorized to
conduct its business as described in the Prospectus, or is subject to no
liability or disability material to the Company and its subsidiaries
considered as a whole by reason of the failure to have made such filings or
to be so licensed or authorized in any such jurisdiction; each Insurance
Subsidiary of the Company is duly organized and licensed as an insurance
company in its state of incorporation and is duly licensed or authorized as
an insurer or reinsurer in each other jurisdiction where it is required to
be so licensed or authorized to conduct its business as described in the
Prospectus, or is subject to no liability or disability material to the
Company and its subsidiaries considered as a whole by reason of the failure
to be so licensed or authorized in any such jurisdiction; each of the
Insurance Subsidiaries has all other necessary authorizations, approvals,
orders, consents, certificates, permits, registrations or qualifications of
and from all insurance regulatory authorities to conduct its business as
described in the Prospectus, or is subject to no liability or disability
material to the Company and its subsidiaries considered as a whole by
reason of the failure to have such authorizations, approvals, orders,
consents, licenses, certificates, permits, registrations or qualifications;
and none of the Company or any Insurance Subsidiary 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 any of the Company or any Insurance
Subsidiary in any case where it could be reasonably expected that (x) the
Company or any Insurance Subsidiary would in fact be required either to
obtain any such additional authorization, approval, order, consent,
license, certificate, permit, registration or qualification, or cease or
otherwise limit writing certain business and (y) obtaining such
authorization, approval, order, consent, license, certificate, permit,
registration or qualification or the limiting of such business 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) Otherwise than as set forth in the Prospectus, each Insurance
Subsidiary is in compliance with the requirements of the insurance laws and
regulations of its state of incorporation and the insurance laws and
regulations of all other jurisdictions which are applicable to such
subsidiary, and has filed all notices, reports, documents or other
information required to be filed thereunder, or in any such case is subject
to no liability or disability material to the Company and its subsidiaries
considered as a whole by reason of the failure to so comply or file;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized
4
<PAGE>
and issued, are fully paid and non-assessable and conform to the
descriptions thereof contained in the Prospectus; and all of the issued
shares of capital stock of each subsidiary of the Company 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;
(j) 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 to
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;
(k) 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 conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any of its subsidiaries or 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
any of its subsidiaries or any of their properties; 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 any of its
subsidiaries 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 [or from the Tennessee Insurance
Commissioner] 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;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
5
<PAGE>
(m) The accountants who have certified the financial statements for
the Company and its subsidiaries included in the Registration Statement are
independent public accountants with respect to the Company as required by
the Act and the rules and regulations of the Commission thereunder; and
(n) The Company is not an "investment company" or a company
"controlled" by an investment company, as defined in the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder.
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. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company 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 and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 430A(a)(3); 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 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
6
<PAGE>
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 jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) 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 request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
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 later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of 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 connec-
tion with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
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 fees and disbursements of counsel for the Underwriters in
connection with
7
<PAGE>
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 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) 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 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 is not required to be qualified as a
foreign corporation for the transaction of business under the laws of
any other jurisdiction, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(ii) Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction
8
<PAGE>
of incorporation, 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;
(iii) 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 to the description thereof in the Prospectus as amended or
supplemented; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
*(iv) The Company and each Insurance Subsidiary have made all
required filings under applicable insurance holding company statutes,
and each is duly licensed or authorized as an insurance holding
company in each jurisdiction where it is required to be so licensed or
authorized to conduct its business as described in the Prospectus, or
is subject to no liability or disability material to the Company and
its subsidiaries considered as a whole by reason of the failure to
have made such filings or to be so licensed or authorized in any such
jurisdiction; each Insurance Subsidiary of the Company is duly
organized and licensed as an insurance company in its state of
incorporation and is duly licensed or authorized as an insurer or
reinsurer in each other jurisdiction where it is required to be so
licensed or authorized to conduct its business as described in the
Prospectus, or is subject to no liability or disability material to
the Company and its subsidiaries considered as a whole by reason of
the failure to be so licensed or authorized in any such jurisdiction;
each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations or qualifications of and from all insurance regulatory
authorities to conduct its business as described in the Prospectus, or
is subject to no liability or disability material to the Company and
its subsidiaries considered as a whole by reason of the failure to
have such authorizations, approvals, orders, consents, licenses,
certificates, permits, registrations or qualifications; and none of
the Company or any Insurance Subsidiary 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 any of the Company or
any Insurance Subsidiary in any case where it could be reasonably
expected that (x) the Company or any Insurance Subsidiary would in
fact be required either to obtain any such additional authorization,
approval, order, consent, license, certificate, permit, registration
or qualification, or cease or otherwise limit writing certain business
and (y) obtaining such authorization, approval, order, consent,
license, certificate, permit, registration or qualification or the
limiting of such business 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;
- -------------------------
* This opinion may be given by inside counsel of the Company.
9
<PAGE>
*(v) Otherwise than as set forth in the Prospectus, each
Insurance Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are
applicable to such subsidiary, and has filed all notices, reports,
documents or other information required to be filed thereunder, or in
any such case is subject to no liability or disability material to the
Guarantor and its subsidiaries considered as a whole by reason of the
failure to so comply or file;
*(vi) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed and
delivered by the Company;
(viii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(ix) The Indenture has been duly authorized by the parties
thereto and 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 has been duly qualified
under the Trust Indenture Act;
(x) The issue and sale of the Designated Securities 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 conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any of its subsidiaries or
any statute 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 any of its
subsidiaries or any of their properties;
(xi) No consent, approval, authorization, order,
registration or qualification of or with any such court or insurance
regulatory authority or other governmental
10
<PAGE>
agency or body having jurisdiction over the Company or any of the
Company's subsidiaries is required for the issue and sale of the
Designated Securities or the consummation by the Company of the
transactions contemplated by this Agreement, any Pricing Agreement or
the Indenture, except such as have been, or will have been prior to
each Time of Delivery, obtained under the Act and the Trust Indenture
Act [or from the Tennessee Insurance Commissioner] 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;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xiii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities (other than the financial statements and related
schedules 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; they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as
of its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of
the Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to
11
<PAGE>
be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(xiv) The Company is not an "investment company" or a company
"controlled" by an investment company, as defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder; and
(xv) The statements contained in the Prospectus under the
caption "Description of Debt Securities of Protective Life" and the
corresponding sections in any prospectus supplement relating to the
Designated Securities, insofar as such statements constitute summaries
of certain provisions of the documents referred to therein, correctly
summarize the material provisions of such documents.
(d) 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 effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or from any action, order or decree of any court or
insurance regulatory or other governmental authority, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, and
(ii) 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 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 in Clause (i) or (ii), is
in the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
12
<PAGE>
(g) 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
(h) 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 (e) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company and Protective Life Insurance Company
("Protective Life Insurance") will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Company nor Protective Life Insurance shall be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, 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 or Protective Life Insurance by any
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company and
Protective Life Insurance against any losses, claims, damages or liabilities to
which the Company or Protective Life Insurance may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating
13
<PAGE>
to the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company or Protective Life
Insurance by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company or Protective Life Insurance for any
legal or other expenses reasonably incurred by the Company or Protective Life
Insurance in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(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 and Protective Life Insurance 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 and Protective Life Insurance 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 and
Protective Life Insurance 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 and Protective Life
Insurance 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 or Protective Life Insurance 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, Protective Life Insurance 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
14
<PAGE>
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company and Protective Life Insurance
under this Section 8 shall be joint and several and shall be in addition to any
liability which the Company and Protective Life Insurance 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
Protective Life Insurance and to each person, if any, who controls the Company
or Protective Life Insurance within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed 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
15
<PAGE>
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 aggre-
gate principal amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated Securities, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
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 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
16
<PAGE>
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.
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:_______________________________
Name:
Title:
As to Section 8 only:
PROTECTIVE LIFE INSURANCE COMPANY
By:_______________________________
Name:
Title:
17
<PAGE>
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
[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 Represen-
tatives 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:
As to Section 8 of the Underwriting
Agreement only:
PROTECTIVE LIFE INSURANCE COMPANY
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
[Names of Co-Representatives, if any]
By:_________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
I-2
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ----------
<S> <C>
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . $
[Name(s) of Co-Representative(s)]. . . . . . . . . . . . . . .
[Names of other Underwriters]. . . . . . . . . . . . . . . . .
--------------
Total $
--------------
--------------
</TABLE>
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
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(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the 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 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 per share amounts of income before extraordinary items 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;
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>
DRAFT OF APRIL 14, 1994
PROTECTIVE LIFE CORPORATION
PREFERRED STOCK
(PAR VALUE $1.00 PER SHARE)
__________
UNDERWRITING AGREEMENT
............., 1994
To the Representatives of the several
Underwriters 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 (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares of its Preferred Stock (par value $1.00 per
share) (the "Shares") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Shares"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Designated Shares."
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the resolution or resolutions of the board of directors of the Company
identified in such Pricing Agreement.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares 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 Shares or as an obligation of
any of the Underwriters to purchase any of the Shares. The obligation of the
Company to issue and sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of the Firm Shares, the maximum
number of Optional Shares, if any, the initial public offering price of such
Firm and Optional Shares or the manner of determining such price, the purchase
price to the Underwriters of such Designated Shares, the names of the
<PAGE>
Underwriters of such Designated Shares, the names of the Representatives of such
Underwriters, the number of such Designated Shares to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
and Optional Shares, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Shares. 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 on Form S-3 (File No. 33-52831) in respect of the
Shares and Debt Securities 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 included 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 [other than __________]; 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 became effective, each as amended at the time such
part of the registration statement became 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, 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
2
<PAGE>
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 Shares in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the Act
in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Shares;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire,
3
<PAGE>
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or from any action, order or decree of any court or
insurance regulatory or other governmental authority, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity, total surplus (if applicable) or results of
operations of the Company and its subsidiaries (in the case of the
Company's subsidiaries engaged in the business of insurance (each an
"Insurance Subsidiary," and collectively, the "Insurance Subsidiaries"), on
either a GAAP or statutory basis), 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 is not required to
be qualified as a foreign corporation for the transaction of business under
the laws of any other jurisdiction, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such
jurisdiction;
(f) Each of the Company's subsidiaries 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) The Company and each Insurance Subsidiary have made all required
filings under applicable insurance holding company statutes, and each is
duly licensed or authorized as an insurance holding company in each
jurisdiction where it is required to be so licensed or authorized to
conduct its business as described in the Prospectus, or is subject to no
liability or disability material to the Company and its subsidiaries
considered as a whole by reason of the failure to have made such filings or
to be so licensed or authorized in any such jurisdiction; each Insurance
Subsidiary of the Company is duly organized and licensed as an insurance
company in its state of incorporation and is duly licensed or authorized as
an insurer or reinsurer in each other jurisdiction where it is required to
be so licensed or authorized to conduct its business as described in the
Prospectus, or is subject to no liability or disability material to the
Company and its subsidiaries considered as a whole by reason of the failure
to be so licensed or authorized in any such jurisdiction; each of the
Insurance Subsidiaries has all other necessary authorizations, approvals,
orders, consents, certificates, permits, registrations or qualifications of
and from all insurance regulatory authorities to conduct its business as
described in the Prospectus, or is subject to no liability or disability
material to the Company and its subsidiaries considered as a whole by
reason of the failure to have such authori-
4
<PAGE>
zations, approvals, orders, consents, licenses, certificates, permits,
registrations or qualifications; and none of the Company or any Insurance
Subsidiary 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 any of the
Company or any Insurance Subsidiary in any case where it could be
reasonably expected that (x) the Company or any Insurance Subsidiary would
in fact be required either to obtain any such additional authorization,
approval, order, consent, license, certificate, permit, registration or
qualification, or cease or otherwise limit writing certain business and
(y) obtaining such authorization, approval, order, consent, license,
certificate, permit, registration or qualification or the limiting of such
business 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) Otherwise than as set forth in the Prospectus, each Insurance
Subsidiary is in compliance with the requirements of the insurance laws and
regulations of its state of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to such subsidiary,
and has filed all notices, reports, documents or other information required
to be filed thereunder, or in any such case is subject to no liability or
disability material to the Company and its subsidiaries considered as a
whole by reason of the failure to so comply or file;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the descriptions thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company 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;
(j) The Shares have been duly and validly authorized, and, when the
Firm Shares are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Shares and, in the case
of any Optional Shares, pursuant to Over-allotment Options (as defined in
Section 3 hereof) with respect to such Shares, such Designated Shares will
be duly and validly issued and fully paid and non-assessable; the Shares
conform to the description thereof contained in the Registration Statement
and the Designated Shares will conform to the description thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Shares;
(k) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any
5
<PAGE>
violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or any of its subsidiaries or any statute or any order, rule
or regulation of any court or insurance regulatory or other governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or insurance regulatory 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 Shares or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or any
Over-allotment Option, except such as have been, or will have been prior to
each Time of Delivery (as defined in Section 4 hereof), obtained under the
Act [or from the Tennessee Insurance Commissioner] 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 Shares by the
Underwriters;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(m) The accountants who have certified the financial statements for
the Company and its subsidiaries included in the Registration Statement are
independent public accountants with respect to the Company as required by
the Act and the rules and regulations of the Commission thereunder; and
(n) The Company is not an "investment company" or a company
"controlled" by an investment company, as defined in the Investment Company
Act of 1940, as amended, and the rules and regulations thereunder.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Shares and authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Over-allotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, at the terms set forth in
the Prospectus as amended or supplemented, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from the Representatives
to the Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives and the Company
otherwise agree in writing, earlier than or later than
6
<PAGE>
the respective number of business days after the date of such notice set forth
in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the Representa-
tives have been attributed to such Underwriter, provided that, if the Company
has not been so advised, the number of Optional Shares to be so added shall be,
in each case, that proportion of Optional Shares which the number of Firm Shares
to be purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Shares (rounded as the Representatives may determine to
the nearest 100 shares). The total number of Designated Shares to be purchased
by all the Underwriters pursuant to such Pricing Agreement shall be the
aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of the Optional Shares which the
Underwriters elect to purchase.
4. Certificates for the Firm Shares and Optional Shares to be purchased by
each Underwriter pursuant to the Pricing Agreement relating thereto, in
definitive form and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, (i) with respect to the Firm Shares, 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 "First Time of Delivery" and
(ii) with respect to the Optional Shares, if any, on the time and date specified
by the Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery." Each such time and date for delivery is herein called a "Time of
Delivery."
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Shares or, if applicable, such
earlier time as may be required by Rule 430A(a)(3); 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 Shares and prior to any Time of Delivery for such Shares which shall
be disapproved by the Representatives for such Shares promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after any Time of Delivery for such Shares 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
7
<PAGE>
for so long as the delivery of a prospectus is required in connection with
the offering or sale of such Shares, 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 Shares, of the suspension of the qualification
of such Shares 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 Shares 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 Shares for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Shares,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) 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 request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Shares
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 or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders 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 earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission relating 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 Shares and continuing to and including the earlier of
(i) the
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termination of trading restrictions for such Designated Shares, as notified
to the Company by the Representatives and (ii) the last Time of Delivery
for such Designated Shares, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company (other than pursuant to
employee stock option plans existing or on the conversion of convertible
securities outstanding on the date of such Pricing Agreement) which are
substantially similar to such Designated Shares, without the prior written
consent of the Representatives;
(f) To furnish to the holders of Designated Shares as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash flow
of the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the first such
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail; and
(g) During a period of five years from the date of the Pricing
Agreement for such Designated Shares to furnish to the Representatives
copies of all reports or other communications (financial or other)
furnished to holders of common stock of the Company, and deliver to the
Representatives (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company are listed; and (ii) such additional information concerning the
business and financial condition of the Company as the Representatives may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission).
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 Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees charged
by securities rating services for rating the Shares; (v) any filing fees
incident to any required reviews by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of preparing
certificates for the Shares; (vii) the cost and charges of any transfer agent or
registrar or dividend disbursing agent; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Over-allotment Options 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
9
<PAGE>
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Shares by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares 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 Shares are, at and as of
each Time of Delivery for such Designated Shares, 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 such
Designated Shares 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 each
Time of Delivery for such Designated Shares, with respect to the
incorporation of the Company, the validity of the Designated Shares being
delivered at such Time of Delivery, 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) Debevoise & Plimpton, or other counsel for the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinions, dated each Time of Delivery for
such Designated Shares, 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 is not required to be qualified as a
foreign corporation for the transaction of business under the laws of
any other jurisdiction, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(ii) Each of the Company's subsidiaries 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 as amended or supplemented,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing
10
<PAGE>
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;
(iii) 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 (including the Designated
Shares being delivered at such Time of Delivery) have been duly and
validly authorized and issued, are fully paid and non-assessable; and
the Designated Shares conform to the description thereof in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
*(iv) The Company and each Insurance Subsidiary have made all
required filings under applicable insurance holding company statutes,
and each is duly licensed or authorized as an insurance holding
company in each jurisdiction where it is required to be so licensed or
authorized to conduct its business as described in the Prospectus, or
is subject to no liability or disability material to the Company and
its subsidiaries considered as a whole by reason of the failure to
have made such filings or to be so licensed or authorized in any such
jurisdiction; each Insurance Subsidiary of the Company is duly
organized and licensed as an insurance company in its state of
incorporation and is duly licensed or authorized as an insurer or
reinsurer in each other jurisdiction where it is required to be so
licensed or authorized to conduct its business as described in the
Prospectus, or is subject to no liability or disability material to
the Company and its subsidiaries considered as a whole by reason of
the failure to be so licensed or authorized in any such jurisdiction;
each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations or qualifications of and from all insurance regulatory
authorities to conduct its business as described in the Prospectus, or
is subject to no liability or disability material to the Company and
its subsidiaries considered as a whole by reason of the failure to
have such authorizations, approvals, orders, consents, licenses,
certificates, permits, registrations or qualifications; and none of
the Company or any Insurance Subsidiary 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 any of the Company or
any Insurance Subsidiary in any case where it could be reasonably
expected that (x) the Company or any Insurance Subsidiary would in
fact be required either to obtain any such additional authorization,
approval, order, consent, license, certificate, permit, registration
or qualification, or cease or otherwise limit writing certain business
and
- -------------
* This opinion may be given by inside counsel of the Company.
11
<PAGE>
(y) obtaining such authorization, approval, order, consent, license,
certificate, permit, registration or qualification or the limiting of
such business 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;
*(v) Otherwise than as set forth in the Prospectus, each
Insurance Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are
applicable to such subsidiary, and has filed all notices, reports,
documents or other information required to be filed thereunder, or in
any such case is subject to no liability or disability material to the
Guarantor and its subsidiaries considered as a whole by reason of the
failure to so comply or file;
*(vi) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and to the best of such counsel's knowledge, no
such proceedings are threatened, or contemplated by governmental
authorities or threatened by others;
(vii) This Agreement and the Pricing Agreement with respect to
the Designated Shares have been duly authorized, executed and
delivered by the Company;
(viii) The issue and sale of the Designated Shares being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement
and each Over-allotment Option, if any, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any of its subsidiaries or any statute 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 any of its subsidiaries or any of
their properties;
- -------------
* This opinion may be given by inside counsel of the Company.
12
<PAGE>
(ix) 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 any of the Company's subsidiaries is required for
the issue and sale of the Designated Shares being delivered at such
Time of Delivery or the consummation by the Company of the
transactions contemplated by this Agreement, any Pricing Agreement or
any Over-allotment Option, except such as have been, or will have been
prior to each Time of Delivery, obtained under the Act [or from the
Tennessee Insurance Commissioner] 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 Shares by the Underwriters;
(x) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xi) 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 schedules 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 rules and
regulations thereunder; they have no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading or
13
<PAGE>
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(xii) The Company is not an "investment company" or a company
"controlled" by an investment company, as defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder; and
(xiii) The statements contained in the Prospectus under the
caption "Description of Capital Stock of Protective Life" and the
corresponding sections in any prospectus supplement relating to the
Designated Shares, insofar as such statements constitute summaries of
certain provisions of the documents referred to therein, correctly
summarize the material provisions of such documents.
(d) On the date of the Pricing Agreement for such Designated Shares
and at each Time of Delivery for such Designated Shares, the independent
accountants of the Company who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the date
of the most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration Statement, if
the date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or from any action, order or decree of any court or
insurance regulatory or other governmental authority, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, and
(ii) 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 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,
14
<PAGE>
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 in
Clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Shares on the terms and
in the manner contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares 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
Firm Shares or Optional Shares or both on the terms and in the manner
contemplated by the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Shares
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 matters set forth in subsections (a) and (e)
of this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company and Protective Life Insurance Company ("Protective Life
Insurance") 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 Shares, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or
15
<PAGE>
defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor Protective Life Insurance shall be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company or Protective Life Insurance by any
Underwriter of Designated Shares through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the Company and
Protective Life Insurance against any losses, claims, damages or liabilities to
which the Company or Protective Life Insurance 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 Shares, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company or Protective
Life Insurance by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Company or Protective Life Insurance for any
legal or other expenses reasonably incurred by the Company or Protective Life
Insurance in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not, be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(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,
16
<PAGE>
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 and Protective Life
Insurance on the one hand and the Underwriters of the Designated Shares on the
other from the offering of the Designated Shares 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 and Protective Life Insurance on the one hand and the
Underwriters of the Designated Shares 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 and
Protective Life Insurance 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 and Protective Life
Insurance 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 or Protective Life Insurance 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, Protective Life Insurance and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwith-
standing 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 Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Shares in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Shares and not joint.
(e) The obligations of the Company and Protective Life Insurance under this
Section 8 shall be joint and several and shall be in addition to any liability
which the Company and Protective Life Insurance 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
17
<PAGE>
and Protective Life Insurance and to each person, if any, who controls the
Company or Protective Life Insurance within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Shares or Optional Shares which it has agreed to purchase under the Pricing
Agreement relating to such Designated Shares, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Shares 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 Firm Shares or Optional Shares, as the case may be, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Shares 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 Shares, or the Company notifies the
Representatives that it has so arranged for the purchase of such Shares, the
Representatives or the Company shall have the right to postpone a Time of
Delivery for such Shares 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 Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Shares or Optional Shares, as the case may be, to be purchased at the respective
Time of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Shares or Optional
Shares, as the case may be, which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Shares and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Firm Shares or Optional Shares, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm Shares
or Optional Shares, as the case may be, 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
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Firm Shares or Optional Shares, as
the case may be, which remains unpurchased exceeds one-eleventh of the aggregate
number of the Firm Shares or Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, as referred to in subsection (b)
above, or if the Company shall not exercise the right described in subsec-
tion (b) above to require non-defaulting Underwriters to purchase Firm Shares or
Optional Shares, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional Shares, as the case may be,
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
18
<PAGE>
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 Designated Shares.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Shares or Optional Shares with
respect to which such Pricing Agreement shall have been terminated except as
provided in Section 6 and Section 8 hereof; but, if for any other reason,
Designated Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Shares, but the Company shall then be under no further liability to
any Underwriter with respect to such Designated Shares except as provided in
Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares 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 Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
19
<PAGE>
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:_____________________________
Name:
Title:
As to Section 8 only:
PROTECTIVE LIFE INSURANCE COMPANY
By:______________________________
Name:
Title:
20
<PAGE>
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
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 Shares specified in Schedule II hereto (the "Designated
Shares" [consisting of Firm Shares and any Optional Shares the Underwriters may
elect to purchase]). 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 Shares 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 Shares 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 Shares, 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, [(a)] 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 number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto [and, (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares,
as provided
I-1
<PAGE>
below, 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 purchase price to the Underwriters set out in Schedule II hereto
that portion of the number of Optional Shares as to which such election shall
have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering overallotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company given within
a period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the Representa-
tives but in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign and
return to us [One for the Issuer and for 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:
As to Section 8 of the Underwriting
Agreement only:
PROTECTIVE LIFE INSURANCE COMPANY
By:______________________________
Name:
Title:
I-2
<PAGE>
Accepted as of the date hereof:
Goldman, Sachs & Co.
[Name(s) of Co-Representative(s)]
By:______________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
[Maximum Number
Number of of Optional
[Firm] Shares Shares Which
Underwriter to be Purchased May be Purchased
----------- --------------- ----------------
Goldman, Sachs & Co. . . . . . . . .
[Name(s) of Co-Representative(s)] . .
[Names of other Underwriters] . . . .
--------------- ----------------
Total. . . . . . . . . . . . . . . ]
--------------- ----------------
--------------- ----------------
I-4
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SHARES:
DATE OF BOARD RESOLUTION ESTABLISHING THE DESIGNATED SHARES:
............, 19..
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$....... per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$....... per Share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS: $....... per Share]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearinghouse Funds
DIVIDEND RATE:
[.....% per annum]
DIVIDEND PAYMENT DATES:
[months and dates]
DIVIDEND RIGHTS:
[Non-] cumulative, [deferred]
VOTING RIGHTS:
[As described in the draft pospectus
supplement attached hereto.]
LIQUIDATION RIGHTS:
[As described in the draft pospectus
supplement attached hereto.]
I-5
<PAGE>
PREEMPTIVE AND CONVERSION RIGHTS:
[As described in the draft prospectus
supplement attached hereto.]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Shares may be redeemed, [otherwise than through the sinking
fund,] in whole or in part at the option of the Company, on or after
............, ...., at the following redemption prices:
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at $..... per share, together in each case with accrued
dividends to the redemption date.]
[On any dividend payment date falling on or after ............, ...., at
the election of the Company, at a redemption price equal to the stated
amount thereof, plus accrued dividends 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.]
SINKING FUND PROVISIONS:
[None]
[The Designated Shares are entitled to the benefit of a sinking fund to
retire ......... Designated Shares on ............ in each of the years
.... through .... at 100% of their stated amount plus accrued dividends]
[, together with [cumulative] [non-cumulative] redemptions at the option of
the Company to retire an additional ......... Designated Shares in the
years .... through .... at 100% of their stated amount plus accrued
dividends.]
TIME OF DELIVERY:
..........., 19..
CLOSING LOCATION:
I-6
<PAGE>
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares 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-7
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the 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 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 per share amounts of income before extraordinary items 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;
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>
PLC CAPITAL L.L.C.
CUMULATIVE MONTHLY
INCOME PREFERRED SECURITIES
GUARANTEED BY
PROTECTIVE LIFE CORPORATION
__________
UNDERWRITING AGREEMENT
............., 1994
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described.
Dear Sirs:
From time to time PLC Capital L.L.C., a limited liability company formed
under the laws of the State of Delaware (the "Company"), and Protective Life
Corporation, a Delaware corporation, as guarantor and provider of certain backup
undertakings (the "Guarantor" or "Protective Life"), propose to enter into one
or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex I
hereto, with such additions and deletions as the parties thereto may determine,
and, subject to the terms and conditions stated herein and therein, to issue and
sell, in the case of the Company, and to cause the Company to issue and sell, in
the case of the Guarantor, 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 the
Company's preferred limited liability company interests designated Cumulative
Monthly Income Preferred Securities (the "Preferred Securities"), which
Preferred Securities may be issued in one or more series, guaranteed by the
Guarantor pursuant to a Guarantee Agreement, dated as of ___________, 1994 (the
"Guarantee"), for the benefit of the holders from time to time of the Preferred
Securities to the extent set forth in the prospectus and registration statement
described herein (the Preferred Securities and the Guarantee being referred to
collectively as the "Securities"), specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Firm Securities"). If
specified in such Pricing Agreement, the Company may grant to the Underwriters
the right to purchase at their election an additional number of Preferred
Securities, specified in such Pricing Agreement as provided in Section 3 hereof
(the "Optional Securities"). The Firm Securities and the Optional Securities, if
any, which the Underwriters elect to purchase pursuant to Section 3 hereof are
herein collectively called the "Designated Securities."
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto (to the extent
not set forth in the registration statement or prospectus with respect thereto)
and in or pursuant to the written action or actions (each, an "Action") taken by
Protective Life, in its capacity as the member of the Company that holds,
directly or indirectly, all of the outstanding common limited liability company
interests (the "Common Securities") of the Company (in such capacity, the
"Managing Member"). The Company will loan the proceeds of the offering of the
Designated Securities and any capital contributions in respect of Common
Securities to Protective Life, such loan to be evidenced by a series of
subordinated debentures (the
<PAGE>
"Debentures") to be issued by Protective Life pursuant to the subordinated
indenture, as it may be amended and supplemented from time to time (as so
amended or supplemented, the "Indenture") identified in Schedule II to the
Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to 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 any of 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 number of the Firm
Securities, the maximum number of Optional Securities, if any, the initial
public offering price of such Firm and Optional Securities or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Securities, the amount of any compensation to be paid to the
Underwriters by the Guarantor for their services thereunder ("Underwriters'
Compensation"), the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such Designated
Securities to be purchased by each Underwriter and the commission, if any,
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Firm and Optional Securities, if any, and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and prospectus with respect thereto) the
terms of such Designated Securities. A Pricing Agreement shall be in the form of
an executed writing (which may be in counterparts), and may be evidenced by an
exchange of 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. Each of the Company and the Guarantor jointly and severally 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 Debt Securities and Preferred Stock of the Guarantor and the
Securities (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 included 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 [other than ________]; 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
2
<PAGE>
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 became 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 became 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
Guarantor 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);
(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 or the
Guarantor by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
3
<PAGE>
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
or the Guarantor by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(d) The Company has no subsidiaries. None of the Company, the
Guarantor or any of the Guarantor's subsidiaries has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with their
respective businesses from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or from any
action, order or decree of any court or insurance regulatory or other
governmental authority, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the capital stock or long-term debt of the Company or any
change in the capital stock or long-term debt of the Guarantor or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity,
total surplus (if applicable) or results of operations of the Company or
the Guarantor and its subsidiaries (in the case of the Guarantor's
subsidiaries engaged in the business of insurance (each an "Insurance
Subsidiary," and collectively, the "Insurance Subsidiaries"), on either a
statutory or GAAP basis), in each case otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, with all necessary limited liability company power and authority
to own its properties and conduct its business as described in the
Prospectus, and is not required to be qualified as a foreign corporation
for the transaction of business under the laws of any other jurisdiction,
or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(f) Each of the Guarantor and each of its subsidiaries 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
4
<PAGE>
subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction;
(g) The Guarantor and each Insurance Subsidiary have made all required
filings under applicable insurance holding company statutes, and each is
duly licensed or authorized as an insurance holding company in each
jurisdiction where it is required to be so licensed or authorized to
conduct its business as described in the Prospectus, or is subject to no
liability or disability material to the Guarantor and its subsidiaries
considered as a whole by reason of the failure to have made such filings or
to be so licensed or authorized in any such jurisdiction; each Insurance
Subsidiary of the Guarantor is duly organized and licensed as an insurance
company in its state of incorporation and is duly licensed or authorized as
an insurer or reinsurer in each other jurisdiction where it is required to
be so licensed or authorized to conduct its business as described in the
Prospectus, or is subject to no liability or disability material to the
Guarantor and its subsidiaries considered as a whole by reason of the
failure to be so licensed or authorized in any such jurisdiction; each of
the Insurance Subsidiaries has all other necessary authorizations,
approvals, orders, consents, certificates, permits, registrations or
qualifications of and from all insurance regulatory authorities to conduct
its business as described in the Prospectus, or is subject to no liability
or disability material to the Guarantor and its subsidiaries considered as
a whole by reason of the failure to have such authorizations, approvals,
orders, consents, licenses, certificates, permits, registrations or
qualifications; and none of the Guarantor or any Insurance Subsidiary 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 any of the
Guarantor or any Insurance Subsidiary in any case where it could be
reasonably expected that (x) the Guarantor or any Insurance Subsidiary
would in fact be required either to obtain any such additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification, or cease or otherwise limit writing certain
business and (y) obtaining such authorization, approval, order, consent,
license, certificate, permit, registration or qualification or the limiting
of such business would have a material adverse effect on the business,
financial position or results of operations of the Guarantor and its
subsidiaries, considered as a whole;
(h) Otherwise than as set forth in the Prospectus, each Insurance
Subsidiary is in compliance with the requirements of the insurance laws and
regulations of its state of incorporation and the insurance laws and
regulations of other jurisdictions which are applicable to such subsidiary,
and has filed all notices, reports, documents or other information required
to be filed thereunder, or in any such case is subject to no liability or
disability material to the Guarantor and its subsidiaries considered as a
whole by reason of the failure to so comply or file;
(i) Each of the Company and the Guarantor has an authorized
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Guarantor have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the descriptions
thereof contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Guarantor 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 Guarantor, free and clear of all liens, encumbrances, equities or
claims;
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<PAGE>
(j) The Limited Liability Company Agreement (the "L.L.C. Agreement")
of the Company, which is in substantially the form filed as an exhibit to
the Registration Statement, has been duly authorized by the Guarantor and
constitutes a valid and legally binding agreement of the Guarantor and the
wholly-owned subsidiary of the Guarantor which is a party thereto
enforceable against the Guarantor and such subsidiary by the members of the
Company that hold Preferred Securities (the "Preferred Securityholders") in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(k) The Guarantee, which is in substantially the form filed as an
exhibit to the Registration Statement, has been duly authorized and, at the
Time of Delivery (as defined in Section 4 hereof) for such Designated
Securities, such Guarantee will constitute a valid and legally binding
obligation of the Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the Guarantee
will conform to the descriptions thereof in the Prospectus as amended or
supplemented with respect to the Designated Securities;
(l) The Debentures evidencing the loan of the proceeds of any
Designated Securities (and of the related capital contributions in respect
of Common Securities) have been duly authorized, and at the Time of
Delivery for such Designated Securities, such Debentures will have been
duly issued, executed, authenticated and delivered and will constitute
valid and legally binding obligations of the Guarantor, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement, has been duly authorized
by the Guarantor and, at the Time of Delivery for such Designated
Securities, the Indenture will be duly qualified under the Trust Indenture
Act and, assuming due authorization, execution and delivery by the trustee
under such Indenture (the "Trustee"), the Indenture will constitute a valid
and legally binding instrument enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Debentures will conform, to the descriptions
thereof contained in the Prospectus as amended or supplemented with respect
to such Designated Securities;
(m) All of the issued Securities of the Company have been duly and
validly authorized and issued, and are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus; all of the
issued Common Securities of the Company are owned directly or indirectly by
the Guarantor, free and clear of all liens, encumbrances, equities or
claims; and the Company is not a party to or otherwise bound by any
agreement other than those described in the Prospectus;
(n) The Securities have been duly and validly authorized, and, when
the terms of the Designated Securities have been established by an Action
or Actions taken by the Managing Member and issued and delivered pursuant
to this Agreement and the Pricing Agreement with respect to such Designated
Securities
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<PAGE>
and, in the case of any Optional Securities, pursuant to Over-allotment
Options (as defined in Section 3 hereof) with respect to such Designated
Securities, such Designated Securities will be duly and validly issued,
fully paid and non-assessable limited liability company interests in the
Company, as to which the Preferred Securityholders, in their capacity as
members of the Company, will have no liability solely by reason of being
Preferred Securityholders in excess of their share of the Company's assets
and undistributed profits (subject to any obligation of a Preferred
Securityholders to repay any funds wrongfully distributed to it); and the
Securities conform to the description thereof contained in the Registration
Statement and the Designated Securities will conform to the description
thereof contained in the Prospectus as amended or supplemented with respect
to such Designated Securities;
(o) The issue and sale of the Designated Securities and the compliance
by the Company and the Guarantor with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment Option (as defined
in Section 3 hereof), if any, and the execution, delivery and performance
by the Company and the Guarantor of their respective obligations under the
Indenture, the Debentures and the Guarantee, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company, the
Guarantor or any of its subsidiaries is a party or by which the Company,
the Guarantor or any of its subsidiaries is bound or to which any of the
property or assets of the Company, the Guarantor or any of its subsidiaries
is subject, nor will such action result in any violation of the provisions
of the Certificate of Formation of the Company, the L.L.C. Agreement or the
Certificate of Incorporation or By-laws of the Guarantor or any of its
subsidiaries or 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, the Guarantor or any of the
Guarantor's subsidiaries or any of their properties; 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, the Guarantor or any
of the Guarantor's subsidiaries is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement, any Pricing Agreement, the Indenture, the
Debentures, the Guarantee or any Over-allotment Option, except such as have
been, or will have been prior to each Time of Delivery (as defined in
Section 4 hereof), obtained under the Act or the Trust Indenture Act [or
from the Tennessee Insurance Commissioner] 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;
(p) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company, the Guarantor or any
of its subsidiaries is a party or of which any property of the Company, the
Guarantor or any of its subsidiaries is the subject, which, if determined
adversely to the Company, the Guarantor or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company, the Guarantor and its subsidiaries; and, to the
best of the Guarantor's and the Company's knowledge, as
7
<PAGE>
the case may be, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(q) The accountants who have certified the financial statements for
the Guarantor and its subsidiaries included in the Registration Statement
are independent public accountants with respect to the Guarantor as
required by the Act and the rules and regulations of the Commission
thereunder;
(r) There are no contracts, agreements or understandings between the
Company or the Guarantor and any person granting such person the right to
require the Company or the Guarantor to file a registration statement under
the Act with respect to any preferred stock or preferred securities of the
Company or the Guarantor owned or to be owned by such person or to require
the Company or the Guarantor to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company or the Guarantor under the Act; and
(s) The Company is not an "investment company" or a company "con-
trolled" by an investment company, as defined in the Investment Company Act
of 1940, as amended, and the rules and regulations thereunder.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of the Firm
Securities, the several Underwriters propose to offer the Firm Securities for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Securities set forth in such Pricing Agreement, at the terms
set forth in the Prospectus as amended or supplemented, for the sole purpose of
covering over-allotments in the sale of the Firm Securities. Any such election
to purchase Optional Securities may be exercised only by written notice from the
Representatives to the Company, given within a period specified in the Pricing
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives and the
Company otherwise agree in writing, earlier than or later than the respective
number of business days after the date of such notice set forth in such Pricing
Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Securities shall be, in each
case, the number of Optional Securities which the Company and the Guarantor have
been advised by the Representatives have been attributed to such Underwriter,
provided that, if the Company and the Guarantor have not been so advised, the
number of Optional Securities to be so added shall be, in each case, that
proportion of Optional Securities which the number of Firm Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Securities (rounded as the Representatives may
determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm
8
<PAGE>
Securities set forth in Schedule I to such Pricing Agreement plus the aggregate
number of the Optional Securities which the Underwriters elect to purchase.
4. Certificates for the Firm Securities and Optional Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive form and in such authorized denominations and registered
in such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of the
Company to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks, payable to the order of the Company
in the funds specified in such Pricing Agreement, (i) with respect to the Firm
Securities, 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 "First Time of Delivery" and (ii) with respect to the Optional Securities,
if any, on the time and date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Securities, or at such other time and date as the Representatives
and the Company may agree upon in writing, such time and date, if not the First
Time of Delivery, herein called the "Second Time of Delivery." Each such time
and date for delivery is herein called a "Time of Delivery."
As compensation to the Underwriters for their commitments to purchase the
Designated Securities, and in view of the fact that the proceeds of the sale of
the Securities will be loaned by the Company to the Guarantor, the Guarantor
hereby agrees to pay at each Time of Delivery to the Representatives, for the
accounts of the several Underwriters, an amount per Security set forth in the
Pricing Agreement relating to the Designated Securities to be sold by the
Company thereunder, provided, however, that such compensation may, if so
specified in the Pricing Agreement, be a reduced amount per Security set forth
in such Pricing Agreement with respect to Designated Securities sold to certain
institutions thereunder, in which case the Underwriters shall inform the
Company, in writing, the business day prior to each Time of Delivery, of the
number of Designated Securities sold to such institutions.
5. Each of the Company and the Guarantor, jointly and severally, 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 and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 430A(a)(3); 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 any Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after any Time of Delivery for such
Securities 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 or the Guarantor 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
9
<PAGE>
connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after the Company or
the Guarantor 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 jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith neither the Company nor the Guarantor
shall be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) 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 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 or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) In the case of the Guarantor, to make generally available to its
security holders 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 relating thereunder
(including, at the option of the Guarantor, Rule 158);
(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 date
10
<PAGE>
after the last Time of Delivery for such Designated Securities on which the
distribution of the Designated Securities ceases, as determined by the
Representatives and (ii) the date which is 90 days after the last Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any securities of the Company or the Guarantor
(other than pursuant to employee stock option plans existing or on the
conversion of convertible securities outstanding on the date of such
Pricing Agreement) which are substantially similar to such Designated
Securities or the Debentures, or any securities convertible into or
exchangeable for Designated Securities or such substantially similar
securities of either the Company or the Guarantor, without the prior
written consent of the Representatives;
(f) To furnish to the holders of Designated Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash flow
of the Guarantor and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the first such
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Guarantor and
its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the date of the Pricing
Agreement for such Designated Securities to furnish to the Representatives
copies of all reports or other communications (financial or other)
furnished to holders of common stock of the Guarantor, and deliver to the
Representatives (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company or the Guarantor are listed; and (ii) such additional information
concerning the business and financial condition of the Guarantor as the
Representatives may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Guarantor and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use its best efforts to list, subject to notice of issuance,
the Designated Securities on the New York Stock Exchange; and
(i) To use its best efforts to list the Debentures, upon issuance in
exchange for Designated Securities, on the New York Stock Exchange.
6. The Company and the Guarantor, jointly and severally, covenant and agree
with the several Underwriters that the Company and the Guarantor will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's and the Guarantor's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, 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)
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<PAGE>
hereof, including the 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 reviews by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) any cost of preparing certificates for the Securities;
(vii) the cost and charges of any transfer agent or registrar or dividend
disbursing agent; (viii) the cost of qualifying the Securities with The
Depository Trust Company; (ix) the cost of listing the Securities on the New
York Stock Exchange; and (viii) all other costs and expenses incident to the
performance of the Company's and the Guarantor's obligations hereunder and under
any Over-allotment Options 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 and the
Guarantor in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Company and the
Guarantor shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
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 each
Time of Delivery for such Designated Securities, with respect to the
formation of the Company and the incorporation of the Guarantor, the
validity of the Guarantee and the Designated Securities and the Debentures
being delivered at such Time of Delivery, the Indenture, 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; provided, that in
rendering such opinion, such counsel may rely upon the opinion of Richards,
Layton & Finger, P.A. as to all matters of Delaware law relating to the
Company, the Preferred Securities and the L.L.C. Agreement;
(c) Debevoise & Plimpton, or other counsel for the Company and the
Guarantor satisfactory to the Representatives, shall have furnished to the
Representatives their written opinions, dated each Time of Delivery for
such
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<PAGE>
Designated Securities, respectively, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware, with all necessary limited liability company power and
authority to own its properties and conduct its business as described
in the Prospectus as amended or supplemented, and is not required to
be qualified as a foreign corporation for the transaction of business
under the laws of any other jurisdiction, or is subject to no material
liability or disability by reason of the failure to be so qualified in
any such jurisdiction;
(ii) Each of the Guarantor and each of its subsidiaries 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 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;
(iii) Each of the Company and the Guarantor 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
Guarantor have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof in the
Prospectus as amended or supplemented; and all of the issued shares of
capital stock of each subsidiary of the Guarantor 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 Guarantor, free and clear of all liens,
encumbrances, equities or claims;
(iv) All of the issued Securities of the Company have been duly
and validly authorized and issued, and are fully paid and non-
assessable and conform to the description thereof contained in the
Prospectus; all of the issued Common Securities of the Company are
owned directly or indirectly by the Guarantor, free and clear of all
liens, encumbrances, equities or claims; and the Company is not a
party to or otherwise bound by any agreement other than those
described in the Prospectus;
(v) The Designated Securities being delivered at such Time of
Delivery have been duly authorized and validly issued and are fully
paid and non-assessable limited liability company interests in the
Company, as to which the Preferred Securityholders, in their capacity
as members of the Company, will have no liability solely by reason of
being Preferred Securityholders in excess of their share of the
Company's assets and undistributed profits (subject to any obligation
of a Preferred Securityholder to repay any funds wrongfully
distributed to it); and the Securities conform to the description
thereof contained in the Registration Statement and the Designated
Securities conform to the description thereof contained in the
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<PAGE>
Prospectus as amended or supplemented with respect to such Designated
Securities;
(vi) The L.L.C. Agreement has been duly authorized by the
Guarantor and constitutes a valid and legally binding agreement of the
Guarantor and the wholly-owned subsidiary of the Guarantor which is a
party thereto enforceable against the Guarantor and such subsidiary by
the Preferred Securityholders in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vii) The Guarantee has been duly authorized and, at the Time of
Delivery (as defined in Section 4 hereof) for such Designated
Securities, such Guarantee will constitute a valid and legally binding
obligation of the Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Guarantee conforms to the descriptions thereof in
the Prospectus as amended or supplemented with respect to the
Designated Securities;
(viii) The Debentures evidencing the loan of the proceeds of any
Designated Securities (and of the related capital contributions in
respect of Common Securities) have been duly authorized, and at the
Time of Delivery for such Designated Securities, such Debentures will
have been duly issued, executed, authenticated and delivered and will
constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Debentures
will conform to the descriptions thereof contained in the Prospectus
as amended or supplemented with respect to such Designated Securities;
(ix) The Indenture has been duly authorized by the Guarantor
and, assuming due authorization, execution and delivery by the
Trustee, the Indenture will constitute a valid and legally binding
instrument enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Indenture has been duly qualified under the Trust Indenture Act; and
the Indenture conforms to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(x) 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 each of the Company
and the Guarantor;
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*(xi) The Guarantor and each Insurance Subsidiary have made all
required filings under applicable insurance holding company statutes,
and each is duly licensed or authorized as an insurance holding
company in each jurisdiction where it is required to be so licensed or
authorized to conduct its business as described in the Prospectus, or
is subject to no liability or disability material to the Guarantor and
its subsidiaries considered as a whole by reason of the failure to
have made such filings or to be so licensed or authorized in any such
jurisdiction; each Insurance Subsidiary of the Guarantor is duly
organized and licensed as an insurance company in its state of
incorporation and is duly licensed or authorized as an insurer or
reinsurer in each other jurisdiction where it is required to be so
licensed or authorized to conduct its business as described in the
Prospectus, or is subject to no liability or disability material to
the Guarantor and its subsidiaries considered as a whole by reason of
the failure to be so licensed or authorized in any such jurisdiction;
each of the Insurance Subsidiaries has all other necessary
authorizations, approvals, orders, consents, certificates, permits,
registrations or qualifications of and from all insurance regulatory
authorities to conduct its business as described in the Prospectus, or
is subject to no liability or disability material to the Guarantor and
its subsidiaries considered as a whole by reason of the failure to
have such authorizations, approvals, orders, consents, licenses,
certificates, permits, registrations or qualifications; and none of
the Guarantor or any Insurance Subsidiary 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 any of the Guarantor
or any Insurance Subsidiary in any case where it could be reasonably
expected that (x) the Guarantor or any Insurance Subsidiary would in
fact be required either to obtain any such additional authorization,
approval, order, consent, license, certificate, permit, registration
or qualification, or cease or otherwise limit writing certain business
and (y) obtaining such authorization, approval, order, consent,
license, certificate, permit, registration or qualification or the
limiting of such business would have a material adverse effect on the
business, financial position or results of operations of the Guarantor
and its subsidiaries, considered as a whole;
*(xii) Otherwise than as set forth in the Prospectus, each
Insurance Subsidiary is in compliance with the requirements of the
insurance laws and regulations of its state of incorporation and the
insurance laws and regulations of other jurisdictions which are
applicable to such subsidiary, and has filed all notices, reports,
documents or other information required to be filed thereunder, or in
any such case is subject to no liability or disability material to the
Guarantor and its subsidiaries considered as a whole by reason of the
failure to so comply or file;
(xiii) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the Company
and the Guarantor with all of the provisions of this Agreement, any
Pricing Agreement and each Over-allotment Option, if any, and the
execution,
- -----------------
* This opinion may be given by inside counsel of Protective Life.
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delivery and performance by the Company and the Guarantor of their
respective obligations under the Indenture, the Debentures and the
Guarantee and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company,
the Guarantor or any of its subsidiaries is a party or by which the
Company, the Guarantor or any of its subsidiaries is bound or to which
any of the property or assets of the Company, the Guarantor or any of
its subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Formation of the
Company, the L.L.C. Agreement or the Certificate of Incorporation or
By-laws of the Guarantor or any of its subsidiaries or any statute 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, the Guarantor or any of its
subsidiaries or any of their properties;
(xiv) 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, the Guarantor or any of the Guarantor's 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 Indenture, the Debentures, the Guarantee or any Over-
allotment Option, except such as have been, or will have been prior to
each Time of Delivery, obtained under the Act or the Trust Indenture
Act [or from the Tennessee Insurance Commissioner] 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;
(xv) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company, the
Guarantor or any of its subsidiaries is a party or of which any
property of the Company, the Guarantor or any of its subsidiaries is
the subject, other than as set forth in the Prospectus as amended and
supplemented, which, if determined adversely to the Company, the
Guarantor or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the
Company, the Guarantor and its subsidiaries; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xvi) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of
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such documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xvii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company or the Guarantor prior to such Time of Delivery
(other than the financial statements and related schedules 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; they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company or the
Guarantor prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as
of its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company or the Guarantor
prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company or the
Guarantor prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required;
(xviii) The Company is not an "investment company" or a company
"controlled" by an investment company, as defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder;
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(xix) The statements contained in the Prospectus under the
captions "Description of Preferred Securities of PLC Capital,"
"Description of Certain Contractual Back-Up Obligations of Protective
Life," "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, correctly summarize the material
provisions of such documents or U.S. tax laws; and
(xx) Such counsel has reviewed its opinions on matters of U.S.
tax law set forth in any prospectus supplement relating to the
Designated Securities being delivered at such Time of Delivery and
confirms such opinion to the Representatives.
In rendering such opinion, such counsel may rely, as to matters of
Delaware law relating to the Company, the Preferred Securities and the
L.L.C. Agreement, upon the opinion of Richards, Layton & Finger, P.A.
(d) Richards, Layton & Finger, P.A., special Delaware counsel for the
Company, shall have furnished to you their written opinion, dated each Time
of Delivery, in form and substance satisfactory to the Representatives,
with respect to the formation of the Company, the validity of the
Designated Securities, the L.L.C. Agreement, statements of Delaware law
contained in 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.
(e) On the date of the Pricing Agreement for such Designated
Securities and at each Time of Delivery for such Designated Securities, the
independent accountants of the Guarantor and the Company who have certified
the financial statements of the Guarantor and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of the
Registration Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference in
the Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to
the effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) None of the Company, the Guarantor or any of the Guarantor's
subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented any loss or interference with their
respective businesses from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or from any
action, order or decree of any court or insurance regulatory or other
governmental authority, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, and (ii) since the
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<PAGE>
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 long-term debt of the Company or any change in the capital stock
or long-term debt of the Guarantor 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 or
the Guarantor and its subsidiaries (in the case of the Insurance
Subsidiaries, on either a statutory or GAAP basis), in each case otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described in Clause (i)
or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus as 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 the rating
accorded the Preferred Securities or the Guarantor's debt securities or
preferred stock (including the Guarantee or any other back-up undertakings
in respect of the Preferred Securities) by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Preferred
Securities or the Guarantor's debt securities or preferred stock (including
the Guarantee or any other back-up undertakings in respect of the Preferred
Securities);
(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
Firm Securities or Optional Securities or both on the terms and in the
manner contemplated by the Prospectus as amended or supplemented;
(i) The Designated Securities shall have been duly listed, subject to
notice of issuance, on the New York Stock Exchange;
(j) No event the occurrence of which, under the terms of the
Designated Securities as determined by an Action or Actions of the Managing
Member and as described in the Prospectus as amended and supplemented in
respect of such Designated Securities, would provide the Company with the
right to redeem the Designated Securities for cash or in exchange for
Debentures at any time after the issuance of the Designated Securities (an
"Immediate Redemption Event") shall have occurred and be continuing; and
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<PAGE>
(k) The Guarantor shall have furnished or caused to be furnished to
the Representatives at each Time of Delivery for the Designated Securities
certificates of officers of the Guarantor satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company and the Guarantor herein at and as of such Time of Delivery, as
to the performance by the Company and the Guarantor of all of their
obligations hereunder to be performed at or prior to such Time of Delivery,
as to matters set forth in subsections (a) and (f) of this Section and as
to such other matters as the Representatives may reasonably request.
8. (a) The Company, the Guarantor and Protective Life Insurance Company
("Protective Life Insurance") will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that none of
the Company, the Guarantor or Protective Life Insurance shall be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, 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, the Guarantor or Protective Life Insurance
by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company, the
Guarantor and Protective Life Insurance against any losses, claims, damages or
liabilities to which the Company, the Guarantor or Protective Life Insurance may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company, the Guarantor or Protective Life Insurance
by such Underwriter through the Representatives expressly for use therein; and
will reimburse the Company, the Guarantor or Protective Life Insurance for any
legal or other expenses
20
<PAGE>
reasonably incurred by the Company, the Guarantor or Protective Life Insurance
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not, be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(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, the Guarantor and Protective Life Insurance 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, the Guarantor
and Protective Life Insurance 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, the Guarantor and
Protective Life Insurance 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, the Guarantor and
Protective Life Insurance 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, the Guarantor or
Protective Life Insurance 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, the Guarantor,
Protective Life Insurance and the Underwriters agree that it would not be just
and equitable if contributions
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pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company, the Guarantor and Protective Life
Insurance under this Section 8 shall be joint and several and shall be in
addition to any liability which the Company, the Guarantor and Protective Life
Insurance 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, the Guarantor and Protective Life Insurance
and to each person, if any, who controls the Company, the Guarantor or
Protective Life Insurance within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities or Optional 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 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 Firm Securities or Optional Securities, as the case may
be, then the Company and the Guarantor shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Securities on such terms.
In the event that, within the respective prescribed period, the Representatives
notify the Company and the Guarantor that they have so arranged for the purchase
of such Securities, or either the Company or the Guarantor notifies the
Representatives that it has so arranged for the purchase of such Securities, the
Representatives, the Company or the Guarantor shall have the right to postpone a
Time of Delivery for such 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 and the Guarantor agree 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
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<PAGE>
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
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives, the Company and the
Guarantor as provided in subsection (a) above, the aggregate number of such
Designated Securities which remains unpurchased does not exceed one-eleventh of
the aggregate number of the Firm Securities or Optional Securities, as the case
may be, to be purchased at the respective Time of Delivery, then the Company and
the Guarantor shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Securities or Optional Securities, as the case may
be, 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 number
of Firm Securities or Optional Securities, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Securities or Optional Securities, as the case may be, 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
Firm Securities or Optional Securities, as the case may be, of a defaulting
Underwriter or Underwriters by the Representatives, the Company and the
Guarantor as provided in subsection (a) above, the aggregate number of Firm
Securities or Optional Securities, as the case may be, which remains unpurchased
exceeds one-eleventh of the aggregate number of the Firm Securities or Optional
Securities, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Company or the
Guarantor shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Firm Securities or the
Over-allotment Option relating to such Optional Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Guarantor, except for the expenses to be borne
by the Company, the Guarantor 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 Guarantor 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 the Guarantor, or any officer or director or controlling person of
the Company or the Guarantor, and shall survive delivery of and payment for the
Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company and the Guarantor shall not then be
under any liability to any Underwriter with respect to the Firm Securities or
Optional Securities with respect to which such Pricing Agreement shall have been
terminated except as provided in Section 6 and Section 8 hereof; but, if for any
other reason, Designated Securities are not delivered
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by or on behalf of the Company and the Guarantor as provided herein, the Company
and the Guarantor, jointly and severally, will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company and the Guarantor 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 or the Guarantor shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Guarantor
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, the Guarantor
and, to the extent provided in Section 8 and Section 10 hereof, the officers and
directors of the Company and the Guarantor and each person who controls the
Company or the Guarantor or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
24
<PAGE>
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,
PLC CAPITAL L.L.C.
By: Protective Life Corporation,
as Managing Member
By: ____________________________
Name:
Title
PROTECTIVE LIFE CORPORATION
By: ____________________________
Name:
Title:
As to Section 8 only:
PROTECTIVE LIFE INSURANCE COMPANY
By: ____________________________
Name:
Title:
25
<PAGE>
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
[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:
PLC Capital L.L.C., a limited liability company formed under the laws of
the State of Delaware (the "Company"), and Protective Life Corporation, a
Delaware corporation, as guarantor and provider of certain back-up undertakings
(the "Guarantor"), propose subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated ............., 1994 (the "Underwriting
Agreement"), that the Company shall issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities," [consisting of Firm Securities and any
Optional Securities the Underwriters may elect to purchase]). 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.
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<PAGE>
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to, and the Guarantor agrees to cause the Company 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 number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I hereto
[and, (b) in the event and to the extent that the Underwriters shall exercise
the election to purchase Optional Securities, as provided below, the Company
agrees to, and the Guarantor agrees to cause the Company 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 purchase price to the Underwriters
set out in Schedule II hereto that portion of the number of Optional Securities
as to which such election shall have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Securities set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering overallotments in the
sale of the Firm Securities. Any such election to purchase Optional Securities
may be exercised by written notice from the Representatives to the Company and
the Guarantor given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Securities to
be purchased and the date on which such Optional Securities are to be delivered,
as determined by the Representatives but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company and the Guarantor
otherwise agree in writing, no earlier than two or later than ten business days
after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign and
return to us ten 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 and the Guarantor. 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
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<PAGE>
form of which shall be submitted to the Company and the Guarantor for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
PLC CAPITAL L.L.C.
By: Protective Life Corporation,
as Managing Member
By: ____________________________
Name:
Title:
PROTECTIVE LIFE CORPORATION
By: ____________________________
Name:
Title:
As to Section 8 of the Underwriting
Agreement only:
As of the date hereof: PROTECTIVE LIFE INSURANCE COMPANY
Goldman, Sachs & Co.
[Co-Representatives, if any]
By: _____________________________
Name:
Title:
By:__________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
Maximum Number
Number of of Optional
Firm Securities Securities Which
Underwriter to be Purchased May be Purchased
----------- --------------- ----------------
Goldman, Sachs & Co. ............
Total ...................
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<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
......% Cumulative Monthly Income Preferred Securities, Series ....,
(liquidation preference $...... per Series .... Preferred Security)
DATE OF ACTION OF THE MANAGING MEMBER ESTABLISHING THE DESIGNATED SECURITIES:
.........., 19..
NUMBER OF DESIGNATED SECURITIES:
Number of Firm Securities:
Maximum Number of Optional Securities:
INITIAL OFFERING PRICE TO PUBLIC:
$....... per security
PURCHASE PRICE BY UNDERWRITERS:
$....... per security
COMMISSION PAYABLE TO UNDERWRITERS:
$....... per security
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House Funds
LIQUIDATION PREFERENCE:
$....... per security
DIVIDEND RATE:
.....% per annum per security
DIVIDEND PAYMENT DATES:
[The last day of each calendar month, commencing .........., 19..]
DIVIDEND RIGHTS:
As described in the draft prospectus supplement attached hereto.
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<PAGE>
VOTING RIGHTS:
As described in the draft prospectus supplement attached hereto.
LIQUIDATION RIGHTS:
As described in the draft prospectus supplement attached hereto.
REDEMPTION AND EXCHANGE PROVISIONS:
The Designated Securities may be redeemed, in whole or in part, at the
option of the Company on or after ............, .... at
$.... per security, plus accrued and unpaid dividends to the date fixed for
redemption (the "Redemption Price").
Other redemption provisions, as described in the draft prospectus
supplement attached hereto.
SINKING FUND PROVISIONS:
[None]
GUARANTEE:
Payment and Guarantee Agreement, dated as of ......., 1994, of Protective
Life Corporation
TITLE OF DEBENTURES ISSUED BY PROTECTIVE LIFE CORPORATION IN CONNECTION WITH THE
ISSUANCE OF THE DESIGNATED SECURITIES:
Series __ Subordinated Debentures due __________ (the "Debentures")
INDENTURE RELATING TO THE DEBENTURES:
Subordinated Indenture, dated as of ___, 1994, between Protective Life
Corporation and AmSouth Bank, N.A., as Trustee
[FIRST] TIME OF DELIVERY:
..........., 19..
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
I-6
<PAGE>
Address for Notices, etc.:
[OTHER TERMS]*:
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated 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-7
<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 Guarantor 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 Guarantor and its subsidiaries,
inspection of the minute books of the Guarantor 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 Guarantor 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 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 Guarantor'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 Guarantor'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;
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<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 Guarantor and its
subsidiaries, or any decreases in consolidated net sales or in the
total per share amounts of income before extraordinary items 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;
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 Guarantor 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 Guarantor 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>
- -------------------------------------------------------------------------------
PLC CAPITAL L.L.C.
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of ______ __, 1994
- -------------------------------------------------------------------------------
<PAGE>
Draft--April 15, 1994
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
PLC CAPITAL L.L.C. (the "Company"), dated as of ____ __, 1994, is entered into
by and among Protective Life Corporation, a Delaware corporation
("Protective"), and Protective LLC Holding, Inc., a Delaware corporation, and
those other Persons who become Members of the Company from time to time, as
hereinafter provided.
WHEREAS, Protective and Protective LLC Holding, Inc. have
heretofore formed a limited liability company pursuant to the Act by filing
the Delaware Certificate with the office of the Secretary of State of the
State of Delaware on March 24, 1994 and entering into the Limited Liability
Company Agreement of the Company, dated March 24, 1994 (the "Original
Agreement"); and
WHEREAS, the Members desire to continue the Company as limited
liability company under the Act and to amend and restate the Original
Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings
set forth below or in the Section of this Agreement referred to below:
"ACCOUNTING PERIOD" shall mean the period beginning on (and
including) the day following any Adjustment Date (or, in the case of the first
Accounting Period, beginning on the date of formation of the Company) and
ending on (and including) the next succeeding Adjustment Date.
"ACT" shall mean the Delaware Limited Liability Company Act,
Del. Code Ann. tit. 6 Sections 18-101 ET SEQ. (as from time to time amended and
including any successor statute of similar import).
"ACTION" shall have the meaning set forth in Section 3.4.
"ADJUSTMENT DATE" shall mean any of (a) the last day of each
Fiscal Year, (b) the day before the date of admission of any additional
Member, (c) the day before the date any Capital Contribution is made or
deemed to be made, (d) the day before the date a Member ceases to be a
member of the Company, (e) the record date of any distribution by the
Company, (f) any date so established pursuant to any Action or Actions
establishing any series of Preferred Securities or (g) any
<PAGE>
other date determined by the Class A Interest Holder as appropriate for a
closing of the Company's books.
"AFFILIATE" shall mean, with respect to any Person, any Person
directly or indirectly controlled by or controlling or under common control
with such Person (or any successor to any of the foregoing). For the purpose
of this definition, "control" when used with respect to any 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 the meanings
correlative to the foregoing.
"AGREEMENT" shall mean this Amended and Restated Limited
Liability Company Agreement of the Company, as it may be amended, restated or
supplemented from time to time as herein provided.
"AVAILABLE CASH" shall mean the excess of (a) the cash and
short-term investments of the Company over (b) the aggregate of any reserves
established from time to time.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section
3.6.
"CAPITAL CONTRIBUTIONS" shall mean the total amount of cash and
other property contributed to the Company by the Members as initial Capital
Contributions or additional Capital Contributions pursuant to Article III and,
in the case of the Class A Interest Holder and the Class B Interest Holder,
pursuant to Section 6.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and any successor act thereto, and, to the extent
applicable, any Treasury Regulations promulgated thereunder.
"CLASS A INTEREST" shall mean the limited liability company
interest of Protective, as Class A Interest Holder, in and to the profits and
losses of the Company and its right to receive distributions of the Company's
assets.
"CLASS B INTEREST" shall mean the limited liability company
interest of Protective LLC Holding, Inc., as Class B Interest Holder, in and
to the profits and losses of the Company and its right to receive
distributions of the Company's assets.
"COMMON INTERESTS" shall mean the Class A Interest and the Class
B Interest.
"COMPANY" shall mean the limited liability company heretofore
established in accordance with the Original Agreement and hereby continued in
accordance with this Agreement by the parties hereto, as such limited
liability company may from time to time be constituted.
"COVERED PERSON" shall mean any Member, any Affiliate of a
Member or any officers, directors, shareholders, partners, employees,
representatives or agents of a Member or their respective Affiliates, or any
employee or agent of the Company or its Affiliates.
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<PAGE>
"DELAWARE CERTIFICATE" shall mean the Certificate of Formation
of the Company as provided for pursuant to the Act, as originally filed with
the office of the Secretary of State of the State of Delaware, as amended and
restated from time to time as herein provided.
"EFFECTIVE DATE" shall have the meaning set forth in Section
2.5.
"FISCAL YEAR" shall mean the period beginning the Effective Date
and ending December 31, 1994 and thereafter shall mean the annual period
beginning each January 1 and ending the following December 31. The Company
shall have the same fiscal year for financial accounting and United States
Federal income tax purposes, except as otherwise required by the Code.
"HOLDER" shall mean, as of any date, in the case of (a) the
Class A Interest, Protective, (b) the Class B Interest, Protective LLC
Holding, Inc. and (c) any Preferred Security, the Person in whose name the
interest in and to the profits and losses of the Company and right to receive
distributions of the Company's assets established pursuant to the Action or
Actions relating to such Preferred Security is registered on the Register.
"INDEMNIFIED PERSON" shall mean the Class A Interest Holder, any
Affiliate of the Class A Interest Holder or any officers, directors,
shareholders, partners, employees, representatives or agents of the Class A
Interest Holder, or any employee or agent of the Company or its Affiliates.
"LIQUIDATION PREFERENCE" shall mean, with respect to any
Preferred Security, the liquidation preference for such security pursuant to
the Action or Actions establishing such Preferred Security pursuant to Section
3.4.
"MEMBER" shall mean, as of any date, any Person who has been
admitted as a member of the Company pursuant to Section 3.1 of this Agreement
and has not ceased to be a member of the Company pursuant to Section 3.2, in
such Person's capacity as Member.
"NET PROFITS" or "NET LOSSES" shall mean, for any Accounting
Period, the net profits or net losses, as the case may be, of the Company for
such Accounting Period, determined on the accrual basis method of accounting
in accordance with generally accepted accounting principles.
"ORIGINAL AGREEMENT" shall have the meaning set forth in the
recitals to this Agreement.
"OUTSTANDING" shall mean, when used with respect to Preferred
Securities of any series as of any date, the Preferred Securities of such
series theretofore executed and delivered by the Class A Interest Holder on
behalf of the Company pursuant to this Agreement except:
(a) Preferred Securities theretofore cancelled by the Registrar
or delivered to the Registrar for cancellation as permitted by the
Action relating to such series;
(b) Preferred Securities or portions thereof for which the amount
of the final distribution to be made thereon is on deposit with the
depositary for such series of Preferred Securities in trust for the
Holders of such Preferred Securities as provided for in the Action
relating to such series;
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<PAGE>
(c) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been executed and delivered pursuant to
the Action relating to such series; and
(d) Preferred Securities alleged to have been destroyed, lost,
mutilated or stolen for which replacement Preferred Securities have been
issued pursuant to the Action relating to such series.
"PERCENTAGE INTEREST" shall mean with respect to the Holder of
(a) a Common Interest, the ratio that such Holder's aggregate total Capital
Contributions bears to the aggregate total Capital Contributions of all the
Common Interest Holders and (b) any series of Preferred Securities, the
ratio that such Holder's aggregate total Liquidation Preference of such series
bears to the aggregate total Liquidation Preferences of all the Holders of
such series.
"PERSON" shall mean any individual or any general partnership,
limited partnership, corporation, joint venture, trust, limited liability
company, business trust, cooperative or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits.
"PREFERRED SECURITIES" shall have the meaning set forth in
Section 3.4.
"PROTECTIVE" shall have the meaning set forth in the recitals to
this Agreement.
"REGISTRAR" shall mean the Class A Interest Holder or any Person
appointed by the Class A Interest Holder to keep the Register.
"REGISTER" shall mean have the meaning set forth in Section 8.1.
"TAX MATTERS PARTNER" shall have the meaning set forth in
Section 8.2(c).
"TRANSFER" shall have the meaning set forth in Section 7.1.
"TREASURY REGULATIONS" shall mean the Federal income tax
regulations, including any temporary or proposed regulations, promulgated
under the Code, as such Treasury Regulations may be amended from time to time
(it being understood that all references herein to specific sections of the
Treasury Regulations shall be deemed also to refer to any corresponding
provisions of succeeding Treasury Regulations).
ARTICLE II
THE COMPANY
Section 2.1 FORMATION; CONTINUATION. The Class A Interest
Holder and the Class B Interest Holder, by execution of the Original Agreement
and the filing of the Delaware Certificate, entered into and joined together
in, and did thereby form, the Company as a limited liability company under and
pursuant to the Act. The Members hereby agree to continue the Company as a
limited liability company under and pursuant to the Act.
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Section 2.2 COMPANY NAME. The name of the Company shall be
"PLC Capital L.L.C.". The business of the Company shall be conducted under
such name or such other name or names as the Class A Interest Holder may from
time to time determine in its sole discretion.
Section 2.3 THE DELAWARE CERTIFICATE, ETC. The Class A
Interest Holder is hereby designated as an "authorized person," within the
meaning of the Act, and has executed and filed the Delaware Certificate with
the Secretary of State of the State of Delaware. The Class A Interest Holder
hereby agrees to execute, file and record all such other certificates and
documents, including amendments to the Delaware Certificate, and to do such
other acts as may be appropriate to comply with all requirements for the
formation, continuation and operation of a limited liability company, the
ownership of property, and the conduct of business under the laws of the State
of Delaware and any other jurisdiction in which the Company may own property
or conduct business.
Section 2.4 REGISTERED OFFICE AND REGISTERED AGENT. The
registered office of the Company shall be c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801. The registered agent for service of process on the Company in
the State of Delaware shall be The Corporation Trust Company, Corporation
Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. The registered office and the registered agent of the Company may be
changed by the Class A Interest Holder from time to time in accordance with
the then applicable provisions of the Act and any other applicable laws.
Section 2.5 TERM OF COMPANY. The term of the Company commenced
on March 24, 1994, the date of the initial filing of the Delaware Certificate
with the office of the Secretary of State of the State of Delaware (the
"Effective Date"), and shall continue until December 31, 2094, unless it is
sooner dissolved pursuant to provisions of Article IX of this Agreement.
Section 2.6 PURPOSES. The Company is formed and continued for
the object and purpose of issuing its interests and lending the proceeds
thereof to Protective or its subsidiaries in return for debentures or other
written evidences of indebtedness in aggregate principal amounts equal to the
amounts of such loans, bearing interest at a rate at least equal to the
periodic distribution rate, if any, established for the limited liability
company interests the proceeds of which are used to make such loans, and
engaging in any and all activities that may be incidental or conducive to the
foregoing. The Company shall not engage in any other business or activity.
Section 2.7 POWERS. In furtherance of its purposes, but
subject to all of the provisions of this Agreement, the Company, and the Class
A Interest Holder on behalf of the Company, shall have the power and is hereby
authorized to:
(a) execute, file and deliver any registration statements,
amendments and other documents and enter into agreements relating to the
issuance and sale by the Company of its Preferred Securities;
(b) loan money to Protective or its Affiliates pursuant to one
more loan agreements and exercise all of the powers, duties, rights and
responsibilities associated therewith;
(c) take any and all actions necessary, convenient or appropriate
as lender, including, subject to the provisions hereof, the granting or
approval of waivers,
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<PAGE>
consents or amendments of rights or powers relating thereto and the
execution of appropriate documents to evidence such waivers, consents or
amendments;
(d) invest any funds of the Company pending distribution or
payment of the same pursuant to the provisions of this Agreement;
(e) determine and make distributions, in cash or otherwise, to
Members, in accordance with the provisions of this Agreement and of the
Act;
(f) establish or set aside in its sole discretion any reserve or
reserves for contingencies and for any other proper Company purpose;
(g) enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with any Person affiliated with
any of the Members, necessary to, in connection with, or incidental to
the accomplishment of the purposes of the Company;
(h) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors
and consultants and pay reasonable compensation for such services; and
(i) do such other things and engage in such other activities as
may be necessary, convenient or advisable with respect to the conduct of
the business of the Company, and have and exercise all of the powers and
rights conferred upon limited liability companies formed pursuant to the
Act.
The Company and the Class A Interest Holder on behalf of the
Company may enter into and execute, deliver, acknowledge and perform a
registration statement and any amendments and supplements thereto, one or more
underwriting agreements, one or more indentures relating to any loans made by
the Company to Protective, a payment and guarantee agreement and any other
contracts or agreements contemplated thereby, or specifically described
therein, all without any further act, approval or vote of the Members.
The Class A Interest Holder is hereby authorized to conduct its
affairs and to operate the Company in such a way that the Company would not be
deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940 (the "1940 Act") or taxed as a corporation for
Federal income tax purposes and so that any loans made by the Company to
Protective or its subsidiaries will be treated as indebtedness for Federal
income tax purposes. In this connection, the Class A Interest Holder is (a)
authorized to take any action that the Class A Interest Holder determines, in
its sole discretion, to be necessary or desirable for such purposes that (i)
is not inconsistent with applicable law, the Delaware Certificate or this
Agreement and (ii) does not adversely affect the Holders of any Preferred
Securities Outstanding and (b) directed not to take actions, not otherwise
contemplated by this Agreement, that would cause the Company to be deemed to
be an "investment company" under the 1940 Act or taxed as a corporation for
Federal income tax purposes or would cause any loans made by the Company to
Protective not to be treated as indebtedness for Federal income tax purposes.
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Section 2.8 MERGER OR CONSOLIDATION. The Company may not
consolidate or merge with, or convey, transfer or lease its properties and
assets substantially as an entirety to any Delaware limited liability company
or other "business entity" (as defined in the Act), except pursuant to this
Section 2.8, and subject to any additional restrictions or requirements under
any Action or Actions establishing any series of Preferred Securities. The
Class A Interest Holder may, without the consent of the Holders of any series
of Preferred Securities or the Class B Interest, cause the Company to
consolidate or merge with or into a business entity formed under the laws of
the United States or any state or jurisdiction thereof or therein; PROVIDED
that (a) such successor business entity expressly assumes all of the
obligations of the Company under any series of Preferred Securities then
outstanding, (b) Protective expressly acknowledges such successor as the
holder of the loans to Protective pertaining to each series of Preferred
Securities then outstanding, (c) such merger or consolidation does not cause
any series of Preferred Securities then outstanding to be delisted by any
national securities exchange or other organization on which such Preferred
Securities are then listed, (d) such merger or consolidation does not cause
the any Preferred Securities then outstanding to be downgraded by any
"nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act of 1933, (e) such merger or consolidation
does not adversely affect the powers, preferences and other special rights of
holders any Preferred Securities then Outstanding and (f) prior to such
merger or consolidation the Company shall have received an opinion of
independent counsel of nationally recognized standing to the effect that (i)
Holders of any Preferred Securities then Outstanding will not recognize any
gain or loss for Federal income tax purposes as a result of such merger or
consolidation, (ii) such successor business entity will be treated as a
partnership for Federal income tax purposes and such merger or consolidation
will not otherwise cause the Company to be subject to Federal income tax or
more than a de minimis amount of other taxes, (iii) following such merger or
consolidation, Protective and such successor business entity are and will be
in compliance with the Investment Company Act of 1940, as amended, without
registering thereunder as an investment company and (iv) such merger or
consolidation will not adversely affect the limited liability of Holders of
any Preferred Securities Outstanding.
ARTICLE III
MEMBERS; CAPITAL CONTRIBUTIONS
Section 3.1 ADMISSION OF MEMBERS. (a) By execution of this
Agreement, the Class A Interest Holder and the Class B Interest Holder hereby
continue as members of the Company and shall have such rights in and to the
profits and losses of the Company and rights to receive distributions of the
Company's assets, and such other rights and obligations, as provided herein.
(b) Without execution of this Agreement, upon the issuance of
Preferred Securities as provided in this Article and payment by a Person for
the Preferred Securities acquired by it, which payment constitutes a request
by such Person that the Register reflect its admission as a member of the
Company, such Person shall be admitted to the Company as a Member and shall
become bound by this Agreement, and the Register shall be adjusted to reflect
such admission.
(c) If a Holder of any Preferred Securities transfers any such
Preferred Securities pursuant to Section 7.2, the transferee of such Preferred
Securities shall, without execution of this Agreement or the consent of any
Member, upon its acquisition of Preferred Securities and its written request
that the Register reflect its admission as a member of the Company, be
admitted to the Company
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as a member of the Company and become bound by this Agreement, and the
Register shall be adjusted to reflect such transfer and admission.
Section 3.2 CESSATION OF MEMBERSHIP. No Member shall resign
from the Company prior to the dissolution and winding up of the Company. A
Preferred Security Holder shall cease to be a member of the Company upon a
transfer of its entire limited liability company interest in the Company in
compliance with this Agreement or upon the redemption of such Holder's entire
limited liability company interest in the Company as provided herein.
Section 3.3 COMMON INTERESTS. (a) CLASS A INTEREST. (i)
INITIAL CAPITAL CONTRIBUTIONS. As of the date hereof, the Class A
Interest Holder shall have contributed $7,500 to the Company as its initial
Capital Contribution.
(ii) ADDITIONAL CAPITAL CONTRIBUTIONS OF CLASS A INTEREST HOLDER.
Upon the issuance of any Preferred Securities, the Class A Interest
Holder shall make additional Capital Contributions to the Company such
that, as of any Adjustment Date, that the total Capital Contributions of
the Class A Interest Holder shall equal not less than 20% of the total
Capital Contributions of all the Members.
(iii) FORM OF CLASS A INTEREST. The Class A Interest shall not be
evidenced by certificate or other written instrument, but shall only be
evidenced by this Agreement.
(iv) CLASS A INTEREST HOLDER AS PREFERRED SECURITIES HOLDER.
Subject to the terms of any Action or Actions establishing a series of
Preferred Securities and applicable law (including, without limitation,
United States Federal securities laws), the Class A Interest Holder and
its Affiliates may at any time and from time to time purchase
outstanding Preferred Securities (or beneficial interests therein) by
tender, in the open market or by private agreement.
(b) CLASS B INTEREST. (i) INITIAL CAPITAL CONTRIBUTIONS.
As of the date hereof, the Class B Interest Holder shall have contributed
$2,500 to the Company as its initial Capital Contribution.
(ii) ADDITIONAL CAPITAL CONTRIBUTIONS OF CLASS B INTEREST HOLDER.
Upon the issuance of any Preferred Securities, the Class B Interest
Holder shall make additional Capital Contributions to the Company such
that, as of any Adjustment Date, the total Capital Contributions of the
Class B Interest Holder shall equal not less than 1% of the total
Capital Contributions of all the Members.
(iii) FORM OF INTEREST. The Class B Interest shall not be
evidenced by certificate or other written instrument, but shall only be
evidenced by this Agreement.
(iv) CLASS B INTEREST HOLDER AS PREFERRED SECURITIES HOLDER.
Subject to the terms of any Action or Actions establishing a series of
Preferred Securities and applicable law (including, without limitation,
United States Federal securities laws), the Class B Interest Holder and
its Affiliates may at any time and from time to time purchase
outstanding Preferred Securities (or beneficial interests therein) by
tender, in the open market or by private agreement.
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Section 3.4 PREFERRED SECURITIES. (a) The Company is
authorized to issue preferred limited liability company interests having such
designations, stated value, rights, privileges, restrictions, preferences and
other terms and provisions as may from time to time be established in a
written action or actions (each, an "ACTION") of the Class A Interest Holder
providing for issue of such series as hereinafter provided (such interests,
the "PREFERRED SECURITIES") and having terms generally consistent with those
set forth in the Form of Action attached as Annex A hereto (other than changes
that would not materially adversely affect the ability of the Company to make
full and timely periodic distributions or payments upon liquidation to the
Holders of any Outstanding Preferred Securities). In connection with the
foregoing, subject to the provisions of this Section 3.4, the Class A Interest
Holder is expressly authorized to issue one or more series of Preferred
Securities, and with respect to each such series to establish by Action or
Actions providing for the issue of such series:
(i) the maximum number of Preferred Securities to constitute such
series and the distinctive designation thereof;
(ii) whether the Preferred Securities of such series shall have
voting rights, in addition to any voting rights provided by law, and, if
so, the terms of such voting rights;
(iii) the periodic distribution rate, if any, on the Preferred
Securities of such series, the conditions and dates upon which such
distributions shall be payable, the preference or relation which such
distributions shall bear to the periodic distributions payable on any
other class or classes of limited liability company interests in the
Company or on any other series of Preferred Securities, and whether such
distributions shall be cumulative or noncumulative;
(iv) whether the Preferred Securities of such series shall be
subject to redemption by the Company, and if made subject to redemption,
the time, prices and other terms and conditions of such redemption;
(v) the rights of the Holders of Preferred Securities of such
series upon the dissolution, liquidation or winding up of the Company;
(vi) whether or not the Preferred Securities of such series shall be
subject to the operation of a retirement or sinking fund and, if so, the
extent to and manner in which any such retirement or sinking fund shall
be applied to the purchase or redemption of the Preferred Securities of
such series for retirement or to other Company purposes and the terms
and provisions relative to the operation thereof;
(vii) whether or not the Preferred Securities of such series shall be
convertible into, or exchangeable for, limited liability company
interests of any other class or classes, or of any other series of
Preferred Securities, or securities of any other kind, including
securities issued by the Class A Interest Holder or any of its
Affiliates, and if so convertible or exchangeable, the price or prices
or the rate or rates of conversion or exchange and the method, if any,
of adjusting the same;
(viii) the limitations and restrictions, if any, to be effective while
any Preferred Securities of such series are outstanding upon the payment
of periodic distributions or
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other distributions on, and upon the purchase, redemption or other
acquisition by the Company of any other class or classes of limited
liability company interests or any other series of Preferred Securities
ranking junior to the Preferred Securities of such series as to periodic
distributions or distributions of assets upon liquidation;
(ix) the conditions or restrictions, if any, upon the creation of
indebtedness of the Company or upon the issue of any additional limited
liability company interests (including additional Preferred Securities
of such series or any other series) ranking on a parity with or prior to
the Preferred Securities of such series as to periodic distributions or
distributions of assets upon liquidation; and
(x) such other relative rights, powers and duties as shall not be
inconsistent with this Section 3.4.
(b) All Preferred Securities of any one series shall be identical
with each other in all respects, except that Preferred Securities of any one
series issued at different times may differ as to the dates from which
periodic distributions, if any, thereon shall be cumulative; and all other
series of Preferred Securities shall rank equally and be identical in all
respects, except as permitted by paragraph (a) of this Section 3.4; and all
Preferred Securities shall rank senior to the Class A Interest and the Class B
Interest both as to periodic distributions and distributions of assets upon
liquidation.
(c) In connection with the foregoing and without limiting the
generality thereof, the Class A Interest Holder is hereby expressly authorized
to take any action, including amendment of this Agreement, without the vote or
approval of any Member, including any Action to create under the provisions of
this Agreement a class (or series of a class) or group of limited liability
company interests that was not previously outstanding. Without the vote or
approval of any Member, the Class A Interest Holder may execute, swear to,
acknowledge, deliver, file and record whatever documents may be required in
connection with the issue from time to time of Preferred Securities in one or
more series as shall be necessary, convenient or desirable to reflect the
issue of such series. The Class A Interest Holder shall do all things it
deems to be appropriate or necessary to comply with the Act and is authorized
and directed to do all things it deems necessary or permissible in connection
with any future issuance, including compliance with any statute, rule,
regulation or guideline of any Federal, state or other governmental agency or
any securities exchange.
(d) Any Action or Actions of the Class A Interest Holder pursuant
to the provisions of this Section 3.4 shall constitute an amendment and
supplement to and part of this Agreement.
(e) In the event of the dissolution, liquidation or winding up of
the Company, before any payment or distributions of the assets of the Company
shall be made or set apart for the Holders of any class or classes of limited
liability company interests in the Company ranking junior to the Preferred
Securities upon liquidation, the Holders of the Preferred Securities shall be
entitled to receive payment of the amount fixed in the Action or Actions
establishing such series, plus, (if periodic distributions on Preferred
Securities shall be cumulative) an amount equal to all periodic distributions
(whether or not earned or declared) accumulated or accrued to the date of
final distribution to such Holders and no more. If, upon the dissolution,
liquidation or winding up of the Company, the assets of the Company, or
proceeds thereof, distributable among the Preferred Securities shall be
insufficient to pay in full the preferential amounts described above, then
such assets, or the proceeds thereof, shall be distributed among the Preferred
Securities Holders ratably in accordance with the respective amounts that
would be
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payable on their respective Preferred Securities if all amounts payable
thereon were paid in full (taking into account the relative rank of the
respective series of Preferred Securities). For the purpose of this paragraph
(e), the voluntary sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property or assets of the Company shall be deemed a voluntary dissolution,
liquidation or winding up of the Company, but a consolidation or merger of the
Company with one or more business entities shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary.
Section 3.5 CAPITAL ACCOUNTS. A separate capital account (a
"Capital Account") shall be established and maintained for each Member,
including any substituted or additional Member who shall hereafter acquire an
interest in the Company, in accordance with the following provisions:
(a) To each Member's Capital Account there shall be credited
(i) the amount of cash and fair market value of the property actually
contributed by or on behalf of such Member to the Company (including, in
the case of any issue of any series of Preferred Securities pursuant to
Section 3.4, the proceeds of such issuance) and (ii) such Member's
allocable share of Net Profits.
(b) To each Member's Capital Account there shall be debited (i)
the amount of cash and the fair market value of any property distributed
to such Member pursuant to any provision of this Agreement (including
any periodic distribution or any distribution in liquidation of any
Member's interest in the Company (whether in whole or in part) and
(ii) such Member's allocable share of Net Losses.
(c) A Member shall not be entitled to withdraw any part of its
Capital Account or to receive any distributions from the Company except
as provided in Article VI; nor shall a Member be entitled to make any
loan or Capital Contribution to the Company other than as expressly
provided herein. No loan made to the Company by any Member shall
constitute a Capital Contribution to the Company for any purpose.
(d) Except as required by the Act, no Member shall have any
liability for the return of the Capital Contribution of any other
Member. A Member who has more than one limited liability company
interest in the Company shall have a single Capital Account that
reflects all such interests, regardless of the class of interest owned
and regardless of the time or manner in which the interests were
acquired.
Section 3.6 TRANSFERS OF CAPITAL ACCOUNTS. Upon any transfer
of a limited liability company interest in the Company as provided in this
Agreement, the transferee shall succeed to the allocable portion of the
transferor's Capital Account.
ARTICLE IV
DISTRIBUTIONS
Section 4.1 PERIODIC DISTRIBUTIONS. (a) Holders of Preferred
Securities shall receive periodic distributions, if any, in accordance with
the Action or Actions establishing such series and the applicable provisions
of Section 3.4.
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(b) The Common Interest Holders shall, subject to the terms of
any Action or Actions establishing a series of Preferred Securities, and
subject to the applicable provisions of Section 3.4 and the Act, be entitled
to receive periodic distributions as and when determined by the Class A
Interest Holder in its sole discretion.
Section 4.2 ALLOCATIONS OF PERIODIC DISTRIBUTIONS. Subject to
the terms of any Action or Actions establishing a series of Preferred
Securities, and subject to the applicable provisions of Section 3.4, periodic
distributions shall be made to the Common Interest Holders and among the
Common Interest Holders in accordance with their Percentage Interests.
Section 4.3 RESTRICTED DISTRIBUTIONS. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution to any Member on account of its limited liability company
interest in the Company if such distribution would violate Section 18-607 of
the Act or other applicable law.
ARTICLE V
ALLOCATIONS
Section 5.1 ALLOCATION OF NET PROFITS. Subject to the terms
of any Action or Actions establishing a series of Preferred Securities, and
subject to the applicable provisions of Section 3.4, the Net Profits and Net
Losses of the Company shall be allocated on the last calendar day of each
Accounting Period to the Class A Interest Holder and the Class B Interest
Holder and among the Class A Interest Holder and the Class B Interest Holder
in proportion to the positive balances of their relative Capital Accounts.
Section 5.2 TAX ALLOCATIONS. Subject to the terms of any
Action or Actions establishing a series of Preferred Securities, for Federal,
state and local income tax purposes, all income, gain, loss and deduction (and
items thereof) of the Company shall be allocated among the Members in a manner
that will cause the algebraic sum (determined on a cumulative basis from
inception of the Company) of taxable income, gain, loss and deduction
allocated to any Member to represent the same proportion of the algebraic sum
(determined on a cumulative basis from inception of the Company) of Net
Profits and Net Losses allocated to such Member as the algebraic sum
(determined on a cumulative basis from inception of the Company) of taxable
income, gain, loss and deduction of the Company (including for this purpose
income deemed realized pursuant in connection with any property distributed in
kind) represents of the algebraic sum (determined on a cumulative basis from
inception of the Company) of the Company's Net Profits and Net Losses.
Notwithstanding the foregoing, the Class A Interest Holder shall have the
power to make such allocations for Federal, state and local income tax
purposes as may be necessary to maintain substantial economic effect, or to
insure that such allocations are in accordance with the interests of the
Members in the Company, in each case within the meaning of the Code and any
Treasury Regulations thereunder. All matters concerning allocations for
Federal, state and local income tax purposes, including accounting procedures,
not expressly provided for by the terms of this Agreement shall be equitably
determined in good faith by Class A Interest Holder.
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ARTICLE VI
RIGHTS AND OBLIGATIONS OF MEMBERS
Section 6.1 LIMITED LIABILITY OF PREFERRED SECURITIES HOLDERS.
Except as otherwise provided by the Act, no Preferred Securities Holder will
be liable for the debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, which debts, obligations and
liabilities shall be solely the debts, obligations and liabilities of the
Company.
Section 6.2 LIABILITY OF THE COMMON INTEREST HOLDERS. (a) The
Common Interest Holders, in their respective capacities as such, hereby assume
and shall be liable for the obligations and liabilities, whether arising in
contract, tort or otherwise of the Company (other than obligations of the
Company to make payments to the Holders of any Preferred Securities in their
capacities as Holders), including without limitation:
(i) all expenses of the Company, the Common Interest Holders or
their Affiliates relating to the organization of the Company;
(ii) all expenses related to the business of the Company and all
administrative expenses of the Company, including the maintenance of
books and records of the Company, the preparation and dispatch to the
Members of distributions, financial reports, tax returns and notices
required pursuant to this Agreement or in connection with the holding of
any meetings of the Members;
(iii) all expenses incurred in connection with any litigation or
arbitration involving the Company (including the cost of any
investigation and preparation) and the amount of any judgment or
settlement paid in connection therewith (other than expenses incurred by
the Common Interest Holders in connection with any litigation or
arbitration brought by or on behalf of any Member against the Common
Interest Holders);
(iv) all expenses for indemnity or contribution payable by the
Company to any Person;
(v) all expenses incurred in connection with the collection of
amounts due to the Company from any Person;
(vi) all expenses incurred in connection with the preparation of
amendments to this Agreement;
(vii) all taxes that may be imposed on the Company (other than
withholding or other similar taxes imposed on the Company as payor or
paying agent); and
(viii) all expenses incurred in connection with the dissolution,
liquidation and winding up of the Company.
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It is intended that the foregoing impose the same obligation on
the Common Interest Holders as each would have as a general partner of a
limited partnership organized under the Delaware Revised Uniform Limited
Partnership Act.
(b) Any payment made by any Common Interest Holder pursuant to
its obligations under this Section 6.2 shall be considered an additional
Capital Contribution.
Section 6.3 OTHER BUSINESS; COMPENSATION, ETC. (a) In
accordance with Section 18-107 of the Act, the Members (including the Common
Interest Holders) may lend money to, borrow money from, act as surety,
guarantor or endorser for, guarantee or assume one or more obligations of,
provide collateral for, and transact other business with, the Company and,
subject to applicable law, shall have the same rights and obligations with
respect to any such matter as a Person who is not a Member.
(b) The Members and any of their respective Affiliates may engage
in or possess an interest in other business ventures (unconnected with the
Company) of every kind and description, independently or with others. None of
the Company or other Members shall have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement.
Section 6.4 EXCULPATION AND INDEMNIFICATION.
(a) EXCULPATION. No Indemnified Person shall be liable to the
Company or any other Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Agreement, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross negligence
or willful misconduct.
(b) RELIANCE ON REPORTS AND INFORMATION. An Indemnified Person
shall be fully protected in relying in good faith upon the records of the
Company and upon such information, opinions, reports or statements presented
to the Company by any Person as to matters the Indemnified Person reasonably
believes are within such other Person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Company,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Members might properly be paid.
(c) INDEMNIFICATION. To the fullest extent permitted by
applicable law, an Indemnified Person shall be entitled to indemnification
from the Company for any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Agreement, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such acts or omissions; PROVIDED, HOWEVER, that any
indemnity under this Section 6.4(c) shall be provided out of and to the extent
of Company assets only, and no Covered Person shall have any personal
liability on account thereof.
(d) EXPENSES. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Company prior to the final disposition of such claim,
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demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 6.4(c) hereof.
(e) DUTIES. To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities to
the Company or any other Covered Person, no such Indemnified Person shall be
liable to the Company or to any other Covered Person for its good faith
reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of any
Indemnified Person otherwise existing at law or in equity, are agreed by the
Members to replace such other duties and liabilities of such Indemnified
Person.
(f) DISCRETION. Whenever in this Agreement an Indemnified
Person is permitted or required to make a decision (i) in its "discretion"
or under a grant of similar authority or latitude, the Indemnified Person
shall be entitled to consider only such interests and factors as it desires,
including its own interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Company or any other
Person, or (ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Agreement or other
applicable law.
Section 6.5 MANAGEMENT AND CONTROL. In accordance with
Section 18-402 of the Act, management and control of the Company shall be vested
in the Class A Interest Holder and all decisions with respect to the management
and control of the Company shall be made by the Class A Interest Holder.
There shall not be a "manager" (within the meaning of the Act) of the Company.
The Class A Interest Holder shall manage the Company in accordance with this
Agreement. In such capacity, the Class A Interest Holder is an agent of the
Company's business, and the actions of the Class A Interest Holder taken in
accordance with this Agreement shall bind the Company. Except as expressly
provided herein or in the Action or Actions establishing any series of
Preferred Securities, the Class B Interest Holder and Preferred Security
Holders will have no right to participate in the management and control of the
Company or have the right or power to vote on any question or matter or in any
proceeding or to be represented at, or receive notice of, any meeting of
Members. The Class B Interest Holder and the Preferred Securities Holders
shall not be agents of the Company and shall not have any right, power or
authority to transact any business in the name of the Company or to act for or
on behalf of or to bind the Company.
Section 6.6 MEETINGS OF MEMBERS. (a) Meetings of the Members
of any class (or series thereof) or of all classes (or series thereof) of the
Company's Members may be called at any time by the Class A Common Interest
Holder or as provided in any Action or Actions establishing a series of
Preferred Securities. Except to the extent otherwise provided in any such
Action, the provisions of this Section 6.6 shall apply to meetings of Members.
(b) The Class A Interest Holder may fix a date not more than 60
nor less than 10 days preceding the date of any meeting of Members, or
preceding the last day on which the consent of Members may be effectively
expressed for any purpose without a meeting, as a record date for the
determination of the Members entitled (i) to notice of, and to vote at, such
meeting and any adjournment thereof or (ii) to express such consent, and, in
either such case, such Members, and only such Members as shall be Members of
record on the date so fixed, shall be entitled to notice of, and to vote at,
such meeting and any adjournment thereof, or to express such consent, as the
case may be, notwithstanding
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any transfer of any limited liability company interest in the Company on the
Register after any such record date fixed as aforesaid.
(c) Except as otherwise provided by law, the holders of a
majority of the limited liability company interests in the Company entitled to
vote at the meeting shall constitute a quorum at all meetings of the Members.
If a class or series of a class of limited liability interests in the Company
is entitled to vote as such a class or series at a meeting of Members, holders
of a majority of the limited liability company interests of such class or
series entitled to vote at such meeting shall constitute a quorum at such
meeting. In the absence of a quorum, the holders of a majority of all such
limited liability company interests present in person or by proxy may adjourn
any meeting, from time to time, until a quorum shall be present. At any such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
called.
(d) Except as otherwise provided by law or by this Agreement,
every Member who is entitled to vote shall at every meeting of the Members be
entitled to one vote for each limited liability company interest in the
Company held by such Member on the record date. Except as otherwise provided
by law, no vote on any question upon which a vote of the Members may be taken
need be by ballot unless the Class A Interest Holder shall determine that it
shall be by ballot or the holders of a majority of the limited liability
company interests present in person or by proxy and entitled to participate in
such vote shall so demand. In a vote by ballot each ballot shall state the
number of limited liability company interests voted and the name of the Member
or proxy voting. Unless otherwise provided by law or by this Agreement
(including any Action), all questions shall be decided by the vote of the
holders of a majority of the limited liability company interests present in
person or by proxy at the meeting and entitled to vote on the question. In
determining the number of limited liability company interests represented by
the Common Interests, each Common Interest Holder shall be treated as having a
number of limited liability company interests equal to such Common Interest
Holder's aggregate total Capital Contributions (excluding Capital
Contributions made by such Person pursuant to Section 6.2) divided by the sum
of (x) the aggregate total Capital Contributions of all the Common Interest
Holders (excluding Capital Contributions made by any Common Interest Holder
pursuant to Section 6.2) and (y) the aggregate total Capital Contributions
of any other series or class of limited liability company interest in the
Company then Outstanding.
(e) Each Member entitled to vote at a meeting of Members or to
express consent to Company action in writing without a meeting may authorize
another person or persons to act for him by proxy. A proxy acting for any
Member shall be duly appointed by an instrument in writing subscribed by such
Member.
(f) Any action required to or which may be taken at a meeting of
Members may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the Holders of outstanding limited liability company
interests in the Company having not less than the minimum number of votes that
would be necessary to authorize such action at a meeting at which all limited
liability company interests in the Company entitled to vote thereon were
present and voted and shall be delivered to the Company by delivery to the
Class A Interest Holder (who shall have custody of the books in which
proceedings of meetings of Members are recorded).
(g) The Class A Interest Holder, in its sole discretion, shall
establish all other provisions relating to meetings of Members, including
notice of the time, place or purpose of any
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meeting at which any matter is to be voted on by any Members, waiver of any
such notice, action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote, in accordance
with Section 18-302(c) of the Act.
Section 6.7 MISCELLANEOUS. (a) The Members shall not be
required to lend any funds to the Company.
(b) Each of the Members shall only be liable to make payment of
its respective Capital Contributions as and when due hereunder and other
payments as expressly provided in this Agreement. If and to the extent a
Member's Capital Contribution shall be fully paid, such Member shall not,
except as required by the express provisions of the Act regarding repayment of
sums wrongfully distributed to Members, be required to make any further
Capital Contributions.
ARTICLE VII
TRANSFERS OF INTERESTS, ETC.
Section 7.1 COMMON INTERESTS. Neither the Class A Interest
Holder nor the Class B Interest Holder may sell, transfer, alienate, assign,
encumber, pledge, grant or option, or otherwise dispose of (any of the
foregoing a "TRANSFER") any of its Class A Interest or Class B Interest, as
the case may be.
Section 7.2 PREFERRED SECURITIES. The right to, and
restrictions on, any Transfer of any series of Preferred Securities shall be
established in the relevant Action or Actions establishing such series.
Section 7.3 NONRECOGNITION OF CERTAIN TRANSFERS.
Notwithstanding any other provision of this Agreement, any Transfer of any
limited liability company interest in the Company in contravention of any of
the provisions of this Article shall be void and ineffective, and shall not
bind, or be recognized by, the Company.
ARTICLE VIII
BOOKS; ACCOUNTING; TAX ELECTIONS; REPORTS
Section 8.1 BOOKS AND RECORDS. The Class A Interest Holder
shall keep, or cause to be kept, complete and accurate books and records of
account of the Company. The books of the Company (other than books required
to maintain Capital Accounts) shall be kept on the accrual basis of
accounting, and otherwise in accordance with generally accepted accounting
principles consistently applied, and shall at all times be maintained or made
available at the principal business office of the Company. A current list of
the full name and last known business address of each Member, set forth in
alphabetical order (the "REGISTER"), a copy of the Delaware Certificate,
including all certificates of amendment and/or restatement thereto and
executed copies of all powers of attorney pursuant to which
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the Delaware Certificate or any certificate of amendment and/or restatement
has been executed, copies of the Company's Federal, state and local income tax
returns and reports, if any, for the three most recent years, copies of the
Agreement and of any financial statements of the Company for the three most
recent years and all other records required to be maintained pursuant to the
Act, shall be maintained at the principal business office of the Company.
Such books and records of account of the Company shall be open to inspection
and examination at reasonable times by each Member and its duly authorized
representative for any purpose reasonably related to such Member's interest in
the Company. Notwithstanding any other provision of this Agreement, the Class
A Interest Holder may, to the maximum extent permitted by applicable law, keep
confidential from the Members any information the disclosure of which the
Class A Interest Holder reasonably believes is not in the best interests of
the Company or is adverse to the interests of the Company or which the Company
or the Class A Interest Holder is required by law or by an agreement with any
other Person to keep confidential.
Section 8.2 FILINGS OF RETURNS AND OTHER WRITINGS; TAX MATTERS
PARTNER; TAX ELECTIONS. (a)The Class A Interest Holder shall cause the
preparation and timely filing of all Company tax returns and shall, on behalf
of the Company, timely file all other writings required by any governmental
authority having jurisdiction to require such filing.
(b) After the end of each Fiscal Year, the Class A Interest
Holder shall cause to be prepared and transmitted, as promptly as possible,
and in any event within 90 days of the close of the Fiscal Year, a Federal
income tax form K-1 (and any successor form thereto) and such other tax
information as may be required by law.
(c) Unless and until the Members shall otherwise agree, the Class
A Interest Holder shall serve as the "tax matters partner" (as such term is
defined in Section 6231(a)(7) of the Code, the "Tax Matters Partner") for
purposes of Section 6231 of the Code.
(d) Promptly following the written request of the Tax Matters
Partner, the Company shall, to the fullest extent permitted by law, reimburse
and indemnify the Tax Matters Partner for all reasonable expenses, including
reasonable legal and accounting fees, claims, liabilities, losses and damages
incurred by the Tax Matters Partner in connection with any administrative or
judicial proceeding with respect to the tax liability of the Members.
(e) The provisions of this Section 8.2 shall survive the
termination of the Company or the termination of any Member's interest in the
Company and shall remain binding on the Members for as long a period of time
as is necessary to resolve with the Internal Revenue Service any and all
matters regarding the Federal income taxation of the Company or the Members.
(f) The Class A Interest Holder may, in its discretion, make the
election provided for in Section 754 of the Code.
ARTICLE IX
TERMINATION
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Section 9.1 EVENTS OF DISSOLUTION. (a) In accordance with
Section 18-801 of the Act, the Company shall be dissolved and the affairs of
the Company wound up upon the occurrence of any of the following events:
(i) a unanimous written decision of the Members to dissolve the
Company;
(ii) the death, retirement, resignation, expulsion, bankruptcy (as
defined in Section 18-304 of the Act) or dissolution of a Common
Interest Holder or the occurrence of any other event which terminates
the continued membership of a Common Interest Holder in the Company,
unless, if there is more than one Member remaining, the business of the
Company is continued by the consent of all the remaining Members within
ninety days following the occurrence of any such event;
(iii) the entry of a decree of judicial dissolution under Section
18-802 of the Act;
(iv) in any event, at 12:00 midnight on December 31, 2094.
(b) Dissolution of the Company shall be effective on the day on
which the event occurs giving rise to the dissolution, but the Company shall
not terminate until the assets of the Company shall have been distributed as
provided herein and a certificate of cancellation of the Delaware Certificate
has been filed with the Secretary of State of the State of Delaware.
(c) The Company shall not be dissolved by the admission of
Members in accordance with the terms of this Agreement. Except as provided in
Section 9.1(a)(iii), the death, retirement, resignation, expulsion, bankruptcy
(as defined in Section 18-304 of the Act) or dissolution of a Member or the
occurrence of any event that terminates the continued membership of a Member
in the Company, shall not cause the Company to be dissolved and its affairs
wound up so long as the Company at all times has at least two Members. Upon
the occurrence of any such event, the business of the Company shall be
continued without dissolution.
Section 9.2 PROCEEDS OF LIQUIDATION. Upon dissolution of the
Company, the Class A Interest Holder, as liquidating trustee, shall
immediately commence to wind up the Company's affairs; provided, however, that
a reasonable time shall be allowed for the orderly liquidation of the assets
of the Company and the satisfaction of liabilities to creditors so as to
enable the Members to minimize the normal losses attendant upon a liquidation.
Upon the liquidation of the Company, all proceeds resulting therefrom (or from
any other source during the period of winding up of the Company) shall be
applied (i) first, to creditors of the Company, including Members who are
creditors, to the extent otherwise permitted by law, in satisfaction of the
liabilities of the Company (whether by payment or the making of reasonable
provision for payment thereof); and (ii) second, subject to the terms of any
Action or Actions establishing a series of Preferred Securities, and subject
to the applicable provisions of Section 3.4, to the Members in proportion to
and to the extent of the positive balances of the Capital Accounts of the
Members (after reflecting in such Capital Accounts all adjustments thereto
necessitated by (x) all other Company transactions for the Fiscal Year of
the Company in which such liquidation occurs prior to or simultaneously with
such liquidation and (y) such liquidation).
Section 9.3 APPLICATION OF ASSETS. Subject to the terms of any
Action or Actions establishing a series of Preferred Securities, and subject
to the applicable provisions of Section 3.4, in the event of dissolution, the
Company shall conduct only such activities as are necessary to wind up its
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affairs (including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the manner, and in
the order of priority, set forth in Section 9.2.
Section 9.4 GAINS OR LOSSES IN PROCESS OF LIQUIDATION. Subject
to the terms of any Action or Actions establishing a series of Preferred
Securities, and subject to the applicable provisions of Section 3.4, any gain
or loss on disposition of Company property in the process of liquidation shall
be credited or charged to the Capital Accounts of each Member in accordance
with the provisions of Article V. Any property distributed in kind in the
liquidation shall be valued and treated as though the property were sold at
its fair market value and the cash proceeds were distributed. The difference
between the fair market value of property distributed in kind and its book
value shall be treated as a gain or loss on the sale of such property and
shall be credited or charged to the Capital Account of each Member in
accordance with Article V; PROVIDED, HOWEVER, that no Member shall have
the right to request or require the distribution of the assets of the Company
in kind.
ARTICLE X
MISCELLANEOUS
Section 10.1 AMENDMENT TO THE AGREEMENT. Except as otherwise
provided in this Agreement or by any applicable terms of any Action or Actions
establishing a series of Preferred Securities, this Agreement may be amended
by, and only by, a written instrument executed by the Class A Common Interest
Holder; PROVIDED, HOWEVER, that (a) no amendment shall be made, and any
such purported amendment shall be void and ineffective, unless the Company
shall have received an opinion of independent counsel that, after giving
effect to the amendment, the Company will be treated as a partnership for
United States Federal income tax purposes and (b) the terms of any Action or
Actions establishing a series of Preferred Securities may be amended as set
forth in such Action or Actions.
Section 10.2 NOTICES. (a) Any and all notices, consents,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given only if in writing and the same
shall be delivered either in hand or by mail or Federal Express or similar
expedited commercial carrier, addressed to the recipient of the notice,
postage prepaid and registered or certified with return receipt requested (if
by mail), or with all freight charges prepaid (if by Federal Express or
similar carrier).
(b) All notices, demands, and requests to be sent hereunder shall
be deemed to have been given for all purposes of this Agreement upon the date
of receipt or refusal.
(c) All such notices, demands and requests shall be addressed as
follows: (i) if to Protective, at P.O. Box 2606, Birmingham, Alabama,
35202, Attention: Deborah J. Long, Esq., Senior Vice President and General
Counsel, Facsimile: (205) 868-3597, Telephone: (205) 879-9230, if to
Protective LLC Holding, Inc., at P.O. Box 2606, Birmingham, Alabama, 35202,
Attention: Deborah J. Long, Esq., Facsimile: (205) 868-3597, Telephone: (205)
879-9230 and (iii) if to the Company, at P.O. Box 2606, Birmingham, Alabama,
35202, Deborah J. Long, Esq., Facsimile: (205) 868-3597, Telephone: (205)
879-9230.
(d) By giving to the other parties written notice thereof, the
parties hereto and their respective successors and assigns shall have the
right from time to time and at any time during the term
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of this Agreement to change their respective addresses effective upon receipt
by the other parties of such notice and each shall have the right to specify
as its address any other address within the United States of America.
Section 10.3 WORD MEANINGS. The words such as "herein",
"hereinafter", "hereof" and "hereunder" refer to this Agreement as a whole and
not merely to a subdivision in which such words appear unless the context
otherwise requires. The singular shall include the plural and the masculine
gender shall include the feminine and neuter, and vice versa, unless the
context otherwise requires.
Section 10.4 BINDING PROVISIONS. The covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
heirs, legal representatives, successors and assigns of the respective parties
hereto.
Section 10.5 APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. IN THE EVENT OF A CONFLICT
BETWEEN ANY PROVISION OF THIS AGREEMENT AND ANY NONMANDATORY PROVISION OF THE
ACT, THE PROVISION OF THIS AGREEMENT SHALL CONTROL AND TAKE PRECEDENCE.
Section 10.6 SEPARABILITY OF PROVISIONS. Each provision of
this Agreement shall be considered separable and if for any reason any
provision or provisions herein are determined to be invalid, unenforceable or
illegal under any existing or future law, such invalidity, unenforceability or
illegality shall not impair the operation of or affect those portions of this
Agreement which are valid, enforceable and legal.
Section 10.7 TITLES. Section titles are for descriptive
purposes only and shall not control or alter the meaning of this Agreement as
set forth in the text.
Section 10.8 FURTHER ASSURANCES. The Members shall execute and
deliver such further instruments and do such further acts and things as may be
required to carry out the intent and purposes of this Agreement.
Section 10.9 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original of this
Agreement.
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Section 10.10 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties hereto with respect to the transactions
contemplated herein, and supersedes all prior understandings or agreements
between the parties.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first-above written.
PROTECTIVE LIFE CORPORATION
____________________
John D. Johns
Executive Vice President
PROTECTIVE LLC HOLDING, INC.
____________________
R. Stephen Briggs
Executive Vice President
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ANNEX A
FORM OF ACTION
TERMS OF THE [ ]% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES, SERIES [ ]
Protective Life Corporation, a Delaware corporation ("Protective"
or the "Class A Interest Holder") and the Class A Interest Holder of PLC
Capital L.L.C., a limited liability company formed under the laws of the State
of Delaware (the "Company"), HEREBY CERTIFIES:
1. That pursuant to the terms of the Amended and Restated Limited
Liability Company Agreement of the Company, dated _____ __, 1994, among
Protective, Protective LLC Holding, Inc., a Delaware corporation, and the
other Persons who become Members of the Company from time to time as therein
provided (the "Agreement"), the Company authorized the creation of preferred
limited liability interests in the Company (the "Preferred Securities"); and
2. That by this duly adopted Action of the Class A Interest
Holder, on behalf of the Company dated ____________, the Class A Interest
Holder, pursuant to authority granted to it in the Agreement, authorized the
sale and issuance of ________ Series [ ] Preferred Securities having such
designations, stated value, rights, privileges, restrictions, preferences and
other terms and provisions as the Class A Interest Holder authorized or
approved as set forth below:
DECLARED, that pursuant to the Agreement, the Class A Interest
Holder hereby authorizes the issuance of a series of Preferred Securities,
liquidation preference [$ ] per Preferred Security, of the Company and hereby
fixes the number, voting powers, designation, preferences, participating,
optional or other special rights and the qualifications, limitations or
restrictions of, and other matters relating to, said series as follows
(capitalized terms used herein without definition have the meanings ascribed
to such terms in the Agreement):
1. DESIGNATION. [ ]% Cumulative Monthly Income Preferred
Securities, Series [ ], ______ securities of the Preferred Securities of the
Company, liquidation preference [$ ] per Preferred Security, are hereby
constituted as a series of preferred limited liability company interests,
designated as "[ ]% Cumulative Monthly Income Preferred Securities, Series [
]" (hereinafter called the "Series [ ] Preferred Securities").
2. RANKING. The Series [ ] Preferred Securities shall, with
respect to periodic distribution rights and rights on dissolution, liquidation
or winding up, rank (i) pari passu with any other series of Preferred
Securities issued by the Company and (ii) prior to any other limited
liability company interests of the Company, including the Common Interests
(the "Junior Interests"). So long as any Series [ ] Preferred Securities are
outstanding, the Company will not issue any limited liability company
interests ranking, as to participation in the profits or assets of the
Company, senior to the Series [ ] Preferred Securities.
3. PERIODIC DISTRIBUTIONS (DIVIDENDS); ALLOCATIONS. (a) The
Holders of the Series [ ] Preferred Securities shall be entitled to receive,
when, as and if declared by the Company out of funds
<PAGE>
held by the Company and legally available therefor, cumulative cash periodic
distributions ("dividends") at the annual rate of [ ]% of the stated
liquidation preference of [$ ] per Series [ ] Preferred Security per annum,
and no more, calculated on the basis of a 360-day year consisting of 12 months
of 30 days each, and for any period shorter than a full monthly dividend
period, dividends will be computed on the basis of the actual number of days
elapsed in such period, and payable in United States dollars monthly in
arrears on the last day of each calendar month of each year, commencing
________. Such dividends will accumulate and be cumulative whether or not
they have been declared and whether or not there are profits, surplus or other
funds of the Company legally available for the payment of dividends.
Dividends on the Series [ ] Preferred Securities shall be cumulative from the
date of original issue, and the cumulative portion from such date to _________
shall be payable on ____________. In the event that any date on which
dividends are payable on the Series [ ] Preferred Securities is not a day on
which banks in The City of New York are open for business (a "Business Day"),
then payment of the dividend payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(b) Dividends on the Series [ ] Preferred Securities must be
declared by the Class A Interest Holder of the Company in any calendar year or
portion thereof to the extent that the Class A Interest Holder reasonably
anticipates that at the time of payment the Company will have, and will be
paid by the Company to the extent that at the time of proposed payment it has,
(x) funds legally available for the payment of such dividends and (y) cash
on hand sufficient to permit such payments. Dividends declared on the Series
[ ] Preferred Securities will be payable to the Holders thereof as they appear
on the Register on the relevant record dates, which will be [one] Business Day
prior to the relevant payment dates. If dividends can be paid only in part on
the Series [ ] Preferred Securities in any calendar year or portion thereof as
a result of the lack of sufficient funds legally available for the payment of
dividends, then such partial dividends shall be paid on the respective
dividend payment dates on a pro rata basis to Holders of such Series [ ]
Preferred Securities. If at any time dividends on Series A Securities are in
arrears for any monthly dividend period, any dividend payments in respect
thereof must be applied in respect of all dividend periods in arrears, pro
rata in accordance with the respective amounts in arrears for each such period
in equal amounts for each such period. If any dividends are not paid in full
on the payment dates specified, additional dividends will accumulate on any
accumulated and unpaid dividends at the rate stated in paragraph 3(a) above.
(c) If dividends have not been paid in full on the Series [ ]
Preferred Securities, the Company shall not:
(i) pay, or declare and set aside for payment, any dividends
on any other preferred or preference limited liability company
interests of the Company ranking pari passu with the Series [ ]
Preferred Securities as regards participation in profits of the
Company ("Dividend Parity Securities"), unless the amount of any
dividends declared on any Dividend Parity Securities is paid on
the Dividend Parity Securities and the Series [ ] Preferred
Securities on a pro rata basis on the date such dividends are paid
on such Dividend Parity Securities, so that
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(x) (A) the aggregate amount of dividends paid on the
Series [ ] Preferred Securities bears to (b) the
aggregate amount of dividends paid on such Dividend
Parity Securities
the same ratio as
(y) (A) the aggregate of all accumulated and unpaid
dividends in respect of the Series [ ] Preferred
Securities bears to (b) the aggregate of all
accumulated and unpaid dividends in respect of such
Dividend Parity Securities;
(ii) pay, or declare and set aside for payment, any dividends
on any Common Interests or limited liability company interests in
the Company ranking junior to the Series [ ] Preferred Securities
as to dividends ("Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any Dividend
Parity Securities or Dividend Junior Securities;
until, in each case, such time as all accumulated and unpaid dividends
(whether or not declared) on the Series [ ] Preferred Securities shall have
been paid in full for all dividend periods terminating on or prior to, in the
case of clauses (i) and (ii), such payment, and in the case of clause (iii),
the date of such redemption, purchase or acquisition.
(d) It is intended that the Company shall be treated as a
partnership for United States Federal income tax purposes and the Agreement
and all acts of the Members thereof shall, to the fullest extent permitted by
the Delaware Limited Liability Company Act, Del. Code Ann. tit. 6 Sections
18-101 ET SEQ. (the "Act"), be interpreted and construed accordingly.
Consistent with such treatment (i) income of the Company equal to the amount of
dividends accumulated on the Series [ ] Preferred Securities will be allocated
to the Holders of the Series [ ] Preferred Securities, (ii) income in excess
of such amount will be allocated to the Holders of the Junior Interests and
(iii) losses of the Company shall be allocated (w) first, to the Common
Interest Holders to the extent of the positive balances of their Capital
Accounts, (x) second, to the Holder of any other Junior Interests to the
extent of the positive balances of their Capital Accounts, (y) third, to the
Preferred Securities Holders to the extent of the positive balances of their
Capital Accounts and (z) thereafter, to the Common Interest Holders.
4. REDEMPTION. (a) The Series [ ] Preferred Securities are
redeemable, at the option of the Company and subject to the prior consent of
Protective, in whole or in part from time to time, on or after _________, upon
not less than 30 nor more than 60 days' notice, at the Redemption Price. If a
partial redemption would result in a delisting of the Series [ ] Preferred
Securities from the New York Stock Exchange, the Company may only redeem the
Series [ ] Preferred Securities in whole.
(b) Upon any repayment or prepayment of principal on the loans to
Protective of the proceeds from the issuance and sale of the Series [ ]
Preferred Securities and the Junior Interests (the "Series [ ] Subordinated
Debentures"), the proceeds from such repayment of principal on the Series [ ]
Subordinated Debentures shall be applied to redeem the Series [ ] Preferred
Securities at the Redemption Price; PROVIDED that all or a portion of any
such amounts may be reloaned to Protective or one of its subsidiaries, and not
used for redemption, if at the time of each such loan, and as determined in
the judg-
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ment of Protective, as Class A Interest Holder, and the Company's
financial advisor (selected by the Class A Interest Holder, and who shall be
unaffiliated with Protective and shall be among the 30 largest investment
banking firms, measured by total capital, in the United States at the time of
the proposed new loan), (i) Protective is not the subject of a pending case
under the United States Bankruptcy Code, (ii) Protective is not in default
on any loan pertaining to Preferred Securities, (iii) Protective has made
all required monthly payments of interest on all loans pertaining to any
series of Preferred Securities for the immediately preceding [18] months,
(iv) the Company is not in arrears on payments of dividends on any Preferred
Securities, (v) Protective is expected to be able to make timely payment of
principal and interest on such new loan, (vi) such new loan is being made on
terms, and under circumstances, that are no less favorable than those that a
lender would require for a similar loan to an unrelated party, (vii) such
new loan is being made at a rate of interest sufficient at least equal to or
greater than the amount of dividends that accumulate on the Series [ ]
Preferred Securities, (viii) such loan is being made for a fixed term that
is consistent with market circumstances and Protective's financial condition,
(ix) the senior unsecured long-term debt rating of Protective is rated not
less than BBB- (or the equivalent) by Standard & Poor's Corporation or Baa3
(or the equivalent) by Moody's Investors Services, Inc. (or if either of such
rating organizations is not then rating Protective's senior unsecured senior
unsecured long-term debt, the equivalent of such rating by any other
"nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act and any subordinated long-term debt of
Protective or, if there is no such debt then outstanding, the Series [ ]
Preferred Securities, are rated not less than BBB- (or the equivalent) by
Standard & Poor's Corporation or Baa3 (or the equivalent) by Moody's Investors
Services, Inc. or the equivalent of either such rating by any other
"nationally recognized statistical rating organization", (x) such new loan
will not be convertible or exchangeable into any equity interest of or in
Protective or any of its affiliates, (xi) such new loan shall not pay any
contingent or other interest determined by reference to, or otherwise
participate in, the earnings or profits of the borrower; (xii) the interest
payable on such new loan will not exceed [175%] of the dividend rate on the
Series [ ] Preferred Securities and (xiii) the final maturity of such loan
is not later than the [49th] anniversary of the issuance of the Series [ ]
Preferred Securities.
(c) Notwithstanding subparagraph (a) above, on or after the date
of issuance of the Series [ ] Preferred Securities, the Company may, at its
option, subject to the prior written consent of Protective, redeem the Series
[ ] Preferred Securities in whole (but not in part), not less than 30 nor more
than 60 days' notice, for cash at the Redemption Price or in exchange for
subordinated debentures issued by Protective pursuant to the Subordinated
Debenture dated __________ between Protective and ______ as trustee ("Series [
] Subordinated Debentures") having, at the time of exchange, (i) an
aggregate principal amount equal to [$ ] per Series [ ] Preferred Security so
exchanged and (ii) accrued and unpaid interest equal to any accumulated and
unpaid dividends (whether or not declared) at the date fixed for exchange on
the Series [ ] Preferred Securities so exchanged if the Company or Protective
shall have received an opinion of nationally recognized independent counsel
experienced in such matters to the effect that, as a result of a change in
U.S. law or regulation on or after ____________, or a written change or
interpretation or application of U.S. law or regulation, by any legislative
body, court or governmental agency or regulatory authority (including
enactment or imminent enactment of any legislation and the publication of any
judicial decision or regulatory determination) on or after such date, the
Company amy be considered an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(d) Notwithstanding subparagraph (a) above, at any time after the
issuance of the Series [ ] Preferred Securities, upon not less than 30 nor
more than 60 days' notice, the Company may redeem
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the Series [ ] Preferred Securities in exchange for Series [ ] Subordinated
Debentures having, at the time of the exchange, (i) an aggregate principal
amount equal to [$ ] per Series [ ] Preferred Security so exchanged and (ii)
accrued and unpaid interest equal to any accumulated and unpaid dividends
(whether or not declared) at the date fixed for exchange on the Series [ ]
Preferred Securities so exchanged if Protective or the Company have received
an opinion of independent nationally recognized tax counsel experienced in
such matters to the effect that, as a result of a change in U.S. law or
regulation on or after ____________, or a written change or interpretation or
application of U.S. law or regulation, by any legislative body, court or
governmental agency or regulatory authority (including enactment or imminent
enactment of any legislation and the publication of any judicial decision or
regulatory determination) on or after such date), there exists a more than an
insubstantial increase in the risk that (y) Protective will be precluded
from deducting the interest on the Series [ ] Subordinated Debentures for
Federal income tax purposes or (z) the Company is subject to Federal income
tax with respect to the interest received on such loan or more than a de
minimis amount of any other taxes. Furthermore, Protective shall have the
right, upon not less than 30 nor more than 60 days' notice to redeem the
Series [ ] Preferred Securities for cash at the Redemption Price if Protective
and the Company have received an opinion of independent nationally recognized
tax counsel experienced in such matters to the effect that, as a result of a
change in law described above, there exists more than an insubstantial
increase in the risk that Protective will be precluded from deducting the
interest on the Series [ ] Subordinated Debentures for Federal income tax
purposes even if the Series [ ] Preferred Securities were exchanged for the
Series [ ] Subordinated Debentures as described above.
5. REDEMPTION PROCEDURE. (a) Notice of any redemption (a
"Notice of Redemption") of the Series [ ] Preferred Securities will be given
by the Company by mail to each Holder of Series [ ] Preferred Securities to be
redeemed not fewer than 30 nor more than 60 days prior to the date fixed for
redemption thereof. For purposes of the calculation of the date of redemption
and the dates on which notices are given pursuant to this paragraph 5(a), a
Notice of Redemption shall be deemed to be given on the day such notice is
first mailed by first class mail, postage prepaid, to Holders of the Series [
] Preferred Securities. Each Notice of Redemption shall be addressed to the
Holder at the address of the Holder appearing in the Register of the Company.
No defect in the Notice of Redemption or in the mailing thereof or publication
of its contents shall affect the validity of the redemption proceedings.
(b) In the event that fewer than all the outstanding Series [ ]
Preferred Securities are to be redeemed, the Series [ ] Preferred Securities
to be redeemed will be selected in accordance with paragraph 8 hereof. The
Company may not redeem fewer than all the outstanding Series [ ] Preferred
Securities unless all accumulated and unpaid dividends have been paid on all
Series [ ] Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
(c) (1) EXCHANGE FOR SERIES [ ] SUBORDINATED DEBENTURES. In
the event of an exchange pursuant to paragraph 4(c), after the date fixed for
any such exchange, (i) the Series [ ] Preferred Securities will no longer be
deemed to be outstanding, (ii) DTC or its nominee, as the record Holder of the
Series [ ] Preferred Securities, will exchange the global certificate or
certificates representing the Series A Preferred Securities for a registered
global certificate or certificates representing the Series [ ] Subordinated
Debentures to be delivered upon such exchange and (iii) any certificates
representing Series [ ] Preferred Securities not held by DTC or its nominee
will be deemed to represent Series [ ] Subordinated Debentures having a
principal amount equal to the stated liquidated preference of such Series [ ]
Preferred Securities until such certificates are presented to the Company or
its agent for exchange.
5
<PAGE>
(2) REDEMPTION FOR THE REDEMPTION PRICE. If the Company gives
a Notice of Redemption at the Redemption Price in respect of Series [ ]
Preferred Securities, then, by 12:00 noon, New York time, on the redemption
date, the Company will irrevocably deposit with The Depository Trust Company
funds sufficient to pay the applicable Redemption Price and will give The
Depository Trust Company irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof. If Notice of Redemption shall have
been given and funds deposited as required, then upon the date of such
deposit, all rights of Holders of such Series [ ] Preferred Securities so
called for redemption will cease, except the right of the Holders of such
Series [ ] Preferred Securities to receive the Redemption Price, but without
interest, and such Series [ ] Preferred Securities will cease to be
outstanding. In the event that any date fixed for redemption of Series [ ]
Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day. In the
event that payment of the Redemption Price in respect of Series [ ] Preferred
Securities is improperly withheld or refused and not paid either by the
Company or by Protective pursuant to the Payment and Guarantee Agreement,
dated ________, between Protective and the Company (the "Guarantee
Agreement"), dividends on such Series [ ] Preferred Securities will continue
to accumulate at the then applicable rate, from the original redemption date
to the date of payment in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
6. LIQUIDATION DISTRIBUTION. In the event of any voluntary
or involuntary dissolution, liquidation or winding up of the Company, the
Holders of the Series [ ] Preferred Securities at the time outstanding will be
entitled to receive out of the assets of the Company available for
distribution to Members, before any distribution of assets is made to Holders
of Junior Interests or any other class of limited liability company interests
of the Company ranking junior to the Series [ ] Preferred Securities as
regards participation in assets of the Company, but together with the Holders
of every other series of preferred or preference limited liability company
interests of the Company outstanding, if any, ranking pari passu with the
Series [ ] Preferred Securities as regards participation in the assets of the
Company ("Liquidation Parity Securities"), an amount equal, in the case of the
Holders of the Series [ ] Preferred Securities, to the aggregate of the stated
liquidation preference of [$ ] per Series [ ] Preferred Security and all
accumulated and unpaid dividends (whether or not declared) to the date of
payment (the "Liquidation Distribution"). If, upon any such liquidation, the
Liquidation Distributions can be paid only in part because the Company has
insufficient assets available to pay in full the aggregate Liquidation
Distribution and the aggregate maximum Liquidation Distributions on the
Liquidation Parity Securities, then the amounts payable directly by the
Company on the Series [ ] Preferred Securities and on such Liquidation Parity
Securities shall be paid on a pro rata basis, so that
(i) (x) the aggregate amount paid as the Liquidation Distribution
bears to (y) the aggregate amount paid as liquidation
distributions on the Liquidation Parity Securities
the same ratio as
(ii) (x) the aggregate Liquidation Distribution bears to (y) the
aggregate maximum liquidation distributions on the Liquidation
Parity Securities.
6
<PAGE>
7. VOTING RIGHTS. The Series [ ] Preferred Securities shall
not have general voting rights but shall have the rights set forth in this
paragraph 7. If (i) the Company fails to pay dividends in full on the
Securities [ ] Preferred Securities for [18] consecutive monthly dividend
periods (whether or not there are legally available funds) for any period and
as a result dividends on the Series [ ] Preferred Securities shall be in
arrears in an aggregate amount equal to at least [ ] full monthly dividend
payments; (ii) an Event of Default (as defined in the Series [ ]
Subordinated Debentures) under the Series [ ] Subordinated Debentures has
occurred and is continuing; or (iii) Protective is in default on any of its
payment or other obligations under the Guarantee Agreement, then the Holders
of a majority in liquidation preference of the outstanding Series [ ]
Preferred Securities, together with the Holders of any other preferred or
preference limited liability company interests in the Company having the right
to vote for the appointment of a trustee in such event, acting as a single
class, will be entitled, by ordinary resolution passed by the Holders of a
majority in liquidation preference (plus all accumulated and unpaid dividends
per limited liability company interest) of such limited liability company
interests present in person or by proxy at a separate general meeting of such
Holders convened for such purpose, to appoint and authorize a trustee to
enforce the Company's rights as a creditor under the Series [ ] Subordinated
Debentures against Protective (including the acceleration of principal and
accrued interest on the Series [ ] Subordinated Debentures), enforce the
obligations undertaken by Protective under the Guarantee Agreement and declare
and pay dividends on the Series [ ] Preferred Securities. For purposes of
determining whether the Company has failed to pay dividends in full for [18]
consecutive monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full
cumulative dividends have been or contemporaneously are declared and paid with
respect to all monthly dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. Not later than 30 days after such
right to appoint a trustee arises, the Class A Interest Holder will convene
such meeting for the above purpose. If the Class A Interest Holder fails to
convene a general meeting within such 30-day period, the Holders of 10% in
liquidation preference (plus all accumulated and unpaid dividends per limited
liability company interest) of the outstanding Series [ ] Preferred Securities
and such other preferred or preference limited liability company interests
will be entitled to convene such meeting. The provisions of the Agreement
relating to the convening and conduct of the general meetings of Members will
apply with respect to any such meeting. Any trustee so appointed shall vacate
office, subject to the terms of such other preferred or preference limited
liability company interests, immediately if the Company (or Protective
pursuant to the Guarantee Agreement) shall have paid in full all accumulated
and unpaid dividends on the Series [ ] Preferred Securities or such default or
breach by Protective, as the case may be, shall have been cured.
If any resolution is proposed for adoption by the Members of the
Company providing for, or the Class A Interest Holder otherwise proposes to
effect, (w) the amendment, alteration or repeal of the Agreement (as amended
by this Action) so as to adversely affect any rights or powers of the Series
[ ] Preferred Securities Holders or result in the issuance of any limited
liability company interests of the Company ranking, as to dividends or upon
dissolution, liquidation or winding-up of the Company, senior to the Series
[ ] Preferred Securities, (x) the dissolution, liquidation or winding up of
the Company, (y) waive any rights of the Company under the Series [ ]
Subordinated Debentures or allow the Series [ ] Subordinated Debentures to be
repurchased or prepaid prior to _________, 1999 (unless there is an event of
default thereunder and except in connection with a redemption described in
Section 4(c) or 4(d) hereof) or (z) the modification of (i) Section 2.6 of
the Agreement which limits the business and activity in which the Company may
engage, (ii) Sections 7.1 of the Agreement which absolutely prohibits
transfers of Common Interests, (iii) Section 3.3 of the Agreement which
requires the Holders of the Common Interests to contribute amounts to the
Company such that the Common Interests represent at all times not less than
21% of all interests in the capital, income, gain, loss, deduction or credit
of the Company and
7
<PAGE>
(iv) Section 6.2 of the Agreement pursuant to which the Common Interest
Holders agree to be personally liable for all and to pay debts of and claims
against the Company (other than payments to Holders of Preferred Securities in
their capacity as such), then the Holders of outstanding Preferred Securities
of all series (and, in the case of a resolution described in clause (w) above
which would equally adversely affect the rights, preferences or privileges of
any Dividend Parity Securities or any Liquidation Parity Securities, such
Dividend Parity Securities or such Liquidation Parity Securities, as the case
may be, or, in the case of any resolution described in clause (x) or (z)
above, all Liquidation Parity Securities) will be entitled to vote together as
a class on such resolution or action of the Class A Interest Holder (but not
on any other resolution or action), and such resolution or action shall not be
effective except with the approval of the Holders of 66-2/3% in liquidation
preference (plus all accumulated and unpaid dividends) of such outstanding
limited liability company interests; provided, however, that no such approval
or ratification shall be required if the dissolution, liquidation and winding
up of the Company is proposed or initiated upon the initiation of proceedings,
or after proceedings have been initiated, for the dissolution, liquidation, or
winding up of Protective.
No vote or consent of the Holders of the Series [ ] Preferred
Securities will be required for the Company to redeem and cancel Series [ ]
Preferred Securities in accordance with the Agreement (as amended by this
Action).
The rights attached to the Series [ ] Preferred Securities will be
deemed not to be varied by the creation or issue of, and no vote will be
required for the creation of, any further series of Preferred Securities or
any further limited liability company interests of the Company ranking pari
passu with or junior to the Series [ ] Preferred Securities with regard to
participation in the profits or assets of the Company. Holders of Series [ ]
Preferred Securities have no preemptive rights.
Any required approval of Holders of Series [ ] Preferred
Securities may be given at a separate meeting of such Holders convened for
such purpose, at a general meeting of Members of the Company or pursuant to
written consent. The Company will cause a notice of any meeting at which
Holders of the Series [ ] Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of Series [ ] Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or written consents.
Notwithstanding that Holders of Series [ ] Preferred Securities
are entitled to vote or consent under any of the circumstances described
above, any of the Series [ ] Preferred Securities and any such other
preference limited liability company interests entitled to vote with such
Series [ ] Preferred Securities as a single class outstanding at such time
that are owned by Protective or any entity owned more than 20% by Protective,
either directly or indirectly, shall not be entitled to vote or consent and
shall, for the purposes of such vote or consent, be treated as if they were
not outstanding.
8. BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST COMPANY.
The Depository Trust Company ("DTC"), New York, New York, will act as
securities depository for the Series [ ] Preferred Securities. The Series [ ]
Preferred Securities will be issued only in the form of one or more
fully-registered global securities representing in the aggregate the total
number of Series [ ] Preferred Securities and registered in the name of Cede &
Co. (DTC's nominee) and substantially in the form of Annex B to the Agreement.
8
<PAGE>
Redemption notices shall be sent to Cede & Co. If less than all
of the Series [ ] Preferred Securities are being redeemed, Series [ ]
Preferred Securities to be redeemed shall be determined in accordance with
DTC's practice.
DTC may discontinue providing its services as securities
depository with respect to the Series [ ] Preferred Securities at any time by
giving notice to the Company as provided in the agreement between the Company
and DTC. Under such circumstances, in the event that a successor securities
depository is not obtained, Series [ ] Preferred Security certificates are
required to be printed and issued in definitive form. Any Person receiving a
definitive certificate representing Series [ ] Preferred Securities pursuant
to this paragraph 8 shall be deemed to have paid for such Series [ ]
Securities for purposes of Section 3.1(b) of the Agreement, and shall
thereupon be admitted to the Company as a Member in accordance with Section
3.1(b) of the Agreement.
IN WITNESS WHEREOF, the Class A Interest Holder has executed this
Action as of the ____ day of _________, [1994].
By: PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
By:______________________
Name:
Title:
Attest:_______________________
Name:
Title:
9
<PAGE>
Annex B
- -------------------------------------------------------------------------------
Certificate Number Number of Preferred Securities
- -------------------------------------------------------------------------------
1
- -------------------------------------------------------------------------------
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
PLC CAPITAL L.L.C.
__% Cumulative Monthly Income Preferred Securities, Series A
(liquidation preference $25 per Preferred Security)
PLC Capital L.L.C., a limited liability company formed under the laws of
the State of Delaware (the "COMPANY"), hereby certifies that Cede & Co. (the
"HOLDER") is the registered owner of _________ (_______) fully paid and
non-assessable Preferred Securities, representing preferred limited liability
company interests in the Company, designated the __% Cumulative Monthly
Income Preferred Securities, Series A (liquidation preference $25 per
Preferred Security) (the "SERIES A PREFERRED SECURITIES") transferable on
the books and records of the Company, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer. The rights, preferences and limitations of the Series A
Preferred Securities are set forth in, and this Certificate and the Series A
Preferred Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Limited
Liability Company Agreement of the Company as the same may from time to time
be amended (the "LIMITED LIABILITY COMPANY AGREEMENT") authorizing the
issuance of the Series A Preferred Securities and determining the preferred,
deferred and other special rights and restrictions, regarding dividends,
voting, redemption, exchange, return of capital and otherwise, and other
matters relating to the Series A Preferred Securities. The Company or the
Registrar and Transfer Agent will furnish a copy of the Limited Liability
Company Agreement to the Holder without charge upon written request to the
Company at its registered office. Capitalized terms used herein but not
defined shall have the meaning given them in the Limited Liability Company
Agreement. The Holder is entitled to the benefits of the Guarantee Agreement
of Protective Life Corporation, dated , 1994 relating to the Preferred
Securities (the "Guarantee") and to the subordinated debentures (the "Series A
Subordinated Debentures") issued by Protective Life Corporation to the Company
pursuant to the Subordinated Indenture, dated , 1994 between
Protective Life Corporation and AmSouth Bank N.A., as trustee (the
"Subordinated Indenture") to the extent provided therein and is entitled to
enforce the rights of the Company under the Subordinated Indenture to the
extent provided therein and in the Limited Liability Company Agreement. The
Company will furnish a copy of such Guarantee and Subordinated Indenture to
the Holder without charge upon written request to the Company at its
registered office.
The Holder, by accepting this Certificate, is deemed to have (i)
agreed that the Series A Subordinated Debentures are subordinate and junior in
right of payment to all Senior Indebtedness as and to the extent provided in
the Subordinated Indenture and (ii) agreed that the Guarantee is pari passu
with the Series A Subordinated Debentures and subordinate and junior in right
of payment to all Senior Indebtedness as and to the extent provided in the
Guarantee.
IN WITNESS WHEREOF, this certificate has been signed on behalf of the
Company by the Class A Interest Holder and countersigned by a duly authorized
officer of each of Protective Life Corporation, as Guarantor and AmSouth Bank
N.A., as Registrar and Transfer Agent this , 1994.
PLC CAPITAL L.L.C.
By PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
________________________
By:
Title:
AMSOUTH BANK, N.A. PROTECTIVE LIFE CORPORATION,
as Registrar and as Guarantor
Transfer Agent
____________________ _______________________
By: By:
Title: Title:
<PAGE>
Draft--April 15, 1994
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PROTECTIVE LIFE CORPORATION
to
THE BANK OF NEW YORK, Trustee
SENIOR INDENTURE
------------------------------------
Dated as of __________, 1994
------------------------------------
Providing for Issuance of
Senior Debt Securities in Series
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
[Reconciliation and tie between Indenture, dated as of
_____________, 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(b);
TIA
311(a).................................... TIA
(b)................................... TIA
312(a).................................... 6.8
(b)................................... TIA
(c)................................... TIA
313(a).................................... 6.7; TIA
(b)................................... TIA
(c)................................... TIA
(d)................................... TIA
314(a).................................... 9.6; 9.7; TIA
(b)................................... Not Applicable
(c)(1)................................ 1.2
(c)(2)................................ 1.2
(c)(3)................................ Not Applicable
(d)................................... Not Applicable
(e)................................... TIA
(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
<PAGE>
(b)................................... 5.9; 5.10
(c)................................... 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........................ 48
ARTICLE 4 SATISFACTION, DISCHARGE
AND DEFEASANCE .................................... 49
4.1 Termination of Company's
Obligations Under the
Indenture ................................. 49
4.2 Application of Trust Funds................... 51
4.3 Applicability of Defeasance
Provisions; Company's Option to
Effect Defeasance or Covenant
Defeasance................................. 51
4.4 Defeasance and Discharge..................... 52
4.5 Covenant Defeasance.......................... 53
4.6 Conditions to Defeasance or
Covenant Defeasance........................ 53
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 ................................. 60
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 ................ 62
5.7 Waiver of Past Defaults...................... 62
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 .............. 64
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 ........................... 66
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........................... 68
6.7 Reports by Trustee to Holders................ 69
6.8 Securityholder Lists......................... 69
6.9 Compensation and Indemnity................... 69
6.10 Replacement of Trustee....................... 70
6.11 Acceptance of Appointment
by Successor .............................. 72
6.12 Eligibility; Disqualification................ 74
6.13 Merger, Conversion, Consolidation
or Succession to Business ................. 74
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 ............................... 78
8.1 Supplemental Indentures Without
Consent of Holders ........................ 78
8.2 Supplemental Indentures With
Consent of Holders ........................ 80
8.3 Compliance with Trust Indenture Act.......... 81
8.4 Execution of Supplemental
Indentures................................. 81
8.5 Effect of Supplemental
Indentures ................................ 81
8.6 Reference in Securities to
Supplemental Indentures ................... 82
iii
<PAGE>
PAGE
----
ARTICLE 9 COVENANTS ............................................. 82
9.1 Payment of Principal, Premium,
if any, and Interest ...................... 82
9.2 Maintenance of Office or Agency ............. 82
9.3 Money for Securities to Be
Held in Trust; Unclaimed Money ............ 84
9.4 Corporate Existence ......................... 85
9.5 Reports by the Company....................... 86
9.6 Annual Review Certificate; Notice of
Defaults or Events of Default.............. 87
9.7 Books of Record and Account.................. 87
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 ............................... 88
10.4 Notice of Redemption ........................ 89
10.5 Deposit of Redemption Price.................. 90
10.6 Securities Payable on Redemption
Date ...................................... 91
10.7 Securities Redeemed in Part ................. 92
ARTICLE 11 SINKING FUNDS ........................................ 93
11.1 Applicability of Article .................... 93
11.2 Satisfaction of Sinking
Fund Payments with
Securities ................................ 93
11.3 Redemption of Securities for
Sinking Fund .............................. 93
iv
<PAGE>
Draft--April 15, 1994
INDENTURE, dated as of ________, 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.
[____________________],
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.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated form
in the circumstances described below, a Security in global form representing
all or a portion of the Securities of a series may not be transferred except
as a whole by the Depository for such series to a nominee of such Depository
or by a nominee of such Depository to such Depository or another nominee of
such Depository or by such Depository or any such
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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.
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,
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(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.
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.
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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, 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.
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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 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
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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 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
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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 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
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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 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
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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 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.
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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 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 trans-
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feree 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 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
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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,
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
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currencies as provided in paragraph (b) above, and (i) a Conversion Event
occurs with respect to any such elected currency or currency unit, such Holder
shall receive payment in the currency or currency unit in which payment would
have been made in the absence of such election and (ii) if a Conversion
Event occurs with respect to the currency or currency unit in which payment
would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12
(but, subject to any contravening valid election pursuant to paragraph (b)
above, the elected payment currency or currency unit, in the case of the
circumstances described in clause (i) above, or the payment currency or
currency unit in the absence of such election, in the case of the
circumstances described in clause (ii) above, shall, at the Company's
election, resume being the currency or currency unit of payment with respect
to Holders who have so elected, but only with respect to payments on payment
dates preceded by 15 Business Days during which the circumstances which gave
rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or
currency unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by the Exchange Rate Agent by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency (as each such term is defined
in paragraph (h) below) into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
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"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 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
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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.
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
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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).
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,
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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
(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,
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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 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
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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 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,
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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 Section 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:
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(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 appertaining
thereto. Before such a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future
date or dates in accordance with Article 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
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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.
(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
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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.
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
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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 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
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(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 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
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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 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,
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(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.
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
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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 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
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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 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
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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 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
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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 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
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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 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.
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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.
(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
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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.
(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.
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(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
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
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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 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
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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.
(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
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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
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
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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 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
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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 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.
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(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 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
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this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon original issue,
exchange, registration of transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and,
except as may otherwise be provided pursuant to Section 3.1, 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
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Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 1.6. 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
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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), 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
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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.
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
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(including, without limitation, to provide that Bearer Securities may be
registrable as to principal only) or to facilitate the issuance of
Securities in global form; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 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.
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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 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
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(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 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.
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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 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
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surrendered for payment; PROVIDED, HOWEVER, that if the Securities of that
series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities
of that series in London, Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of
that series are listed on such exchange, and (ii) subject to any laws or
regulations applicable thereto, an office or agency in a Place 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.
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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 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
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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 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
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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 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
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be required by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including information
concerning the Company's compliance with any of its covenants hereunder,
PROVIDED that the foregoing shall not relieve the Trustee of any of its
responsibilities hereunder.
Section 9.6. 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.
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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 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
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provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities, including coupons, if any, of that
series or any integral multiple thereof) of the principal amount of
Securities, including coupons, if any, of such series of a denomination larger
than the minimum authorized denomination for Securities of that series. The
Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
If the Company shall so direct, Securities registered in the name of the
Company, any Affiliate or any Subsidiary thereof shall not be included in the
Securities selected for redemption. If less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are to
be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities (including
coupons, if any) shall relate, in the case of any Securities (including
coupons, if any) redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities (including coupons, if any) which has
been or is to be redeemed.
Section 10.4. 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;
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(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, appertaining thereto must be surrendered to
the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee and any Paying Agent is furnished; and
(10) the CUSIP number, if any, of the Securities.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
Section 10.5. 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 Com-
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pany 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 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
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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 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.
92
<PAGE>
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 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 Com-
93
<PAGE>
pany 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.
--------------------------------------
94
<PAGE>
This Indenture may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
PROTECTIVE LIFE
CORPORATION
By:
-----------------------
Title:
[Seal]
Attest:
- ----------------------------
Secretary
THE BANK OF NEW YORK
By:
-----------------------
Title:
[Seal]
Attest:
- ----------------------------
Title:
95
<PAGE>
Draft--April 15, 1994
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK N.A., Trustee
SUBORDINATED INDENTURE
-----------------------------
Dated as of __________, 1994
-----------------------------
Providing for Issuance of Subordinated
Debt Securities in Series
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
[Reconciliation and tie between Subordinated Indenture, dated as of
_____________, 1994, and the Trust Indenture Act of 1939, as amended.
TRUST INDENTURE ACT SUBORDINATED
OF 1939 SECTION INDENTURE 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(b);
TIA
311 (a)................................... TIA
(b)................................... TIA
312 (a)................................... 6.8
(b)................................... TIA
(c)................................... TIA
313 (a)................................... 6.7; TIA
(b)................................... TIA
(c)................................... TIA
(d)................................... TIA
314 (a)................................... 9.6; 9.7; TIA
(b)................................... Not Applicable
(c)(1)................................ 1.2
(c)(2)................................ 1.2
(c)(3)................................ Not Applicable
(d)................................... Not Applicable
(e)................................... TIA
(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
<PAGE>
(a)(1)(B)............................. 5.7
(b)................................... 5.9; 5.10
(c)................................... 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
Subordinated Indenture.]
<PAGE>
Draft--April 15, 1994
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
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.......................................... 48
i
<PAGE>
PAGE
----
3.14. Agreed Tax Treatment................................... 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......................... 64
5.10. Rights of Holders to Receive Payment................... 64
5.11. Application of Money Collected......................... 65
5.12. Restoration of Rights and Remedies..................... 65
5.13. Rights and Remedies Cumulative......................... 66
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 Respon-
sibilities 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
ii
<PAGE>
PAGE
----
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...................................... 78
8.1. Supplemental Indentures Without
Consent of Holders................................. 78
8.2. Supplemental Indentures With Consent
of Holders.......................................... 80
8.3. Compliance with Trust Indenture Act.................... 81
8.4. Execution of Supplemental Indentures................... 82
8.5. Effect of Supplemental Indentures...................... 82
8.6. Reference in Securities to Supplemental
Indentures.......................................... 82
ARTICLE 9 Covenants.................................................... 82
9.1. Payment of Principal, Premium, if any,
and Interest........................................ 82
9.2. Maintenance of Office or Agency........................ 83
9.3. Money for Securities Payments to Be
Held in Trust; Unclaimed Money...................... 84
9.4. Corporate Existence.................................... 86
9.5. Reports by the Company................................. 86
9.6. Annual Review Certificate; Notice of
Defaults or Events of Default....................... 87
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.................. 91
10.7. Securities Redeemed in Part............................ 93
ARTICLE 11 Sinking Funds................................................ 93
11.1. Applicability of Article............................... 93
iii
<PAGE>
PAGE
----
11.2. Satisfaction of Sinking Fund Payments
with Securities.................................... 93
11.3. Redemption of Securities for Sinking
Fund............................................... 94
ARTICLE 12 Subordination............................................... 94
12.1. Agreement to Subordinate.............................. 94
12.2. Certain Definitions................................... 95
12.3. Liquidation; Dissolution; Bankruptcy;
Etc................................................ 95
12.4. Default on Senior Indebtedness........................ 96
12.5. When Distribution Must Be Paid Over................... 97
12.6. Notice by Company..................................... 97
12.7. Subrogation........................................... 97
12.8. Relative Rights....................................... 98
12.9. Subordination May Not Be Impaired by
Company............................................ 98
12.10. Distribution.......................................... 99
12.11. Rights of Trustee and Paying Agent.................... 99
12.12. Authorization to Effect Subordination................. 100
iv
<PAGE>
Draft--April 15, 1994
SUBORDINATED INDENTURE, dated as of ________, 1994, from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to
AMSOUTH BANK N.A., Trustee, a national 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
subordinated 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
2
<PAGE>
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
Birmingham, Alabama at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
located at 1901 Sixth Avenue North, Suite 730, Birmingham, Alabama 35203,
Attention: Corporate Trust Department.
"CURRENCY UNIT" for all purposes of this Indenture shall include
any composite currency.
"DEBT" means indebtedness for money borrowed.
3
<PAGE>
"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
4
<PAGE>
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 Subordinated 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.
5
<PAGE>
"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.
6
<PAGE>
"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
7
<PAGE>
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
"Senior Indebtedness" 12.2
"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
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pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date and the proposed action by Holders to be given to
the Company in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 1.6.
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, the holders of Senior
Indebtedness 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.
AmSouth Bank N.A.,
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.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated form
in the circumstances described below, a Security in global form representing
all or a portion of the Securities of a series may not be transferred except
as a whole by the Depository for such series to a nominee of such Depository
or by a nominee of such Depository to such Depository or another nominee of
such Depository or by such Depository or any such
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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.
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,
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(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.
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.
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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, 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.
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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 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
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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 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
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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 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
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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 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
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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 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.
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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 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 trans-
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feree 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 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
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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,
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
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currencies as provided in paragraph (b) above, and (i) a Conversion Event
occurs with respect to any such elected currency or currency unit, such Holder
shall receive payment in the currency or currency unit in which payment would
have been made in the absence of such election and (ii) if a Conversion
Event occurs with respect to the currency or currency unit in which payment
would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 3.12
(but, subject to any contravening valid election pursuant to paragraph
(b) above, the elected payment currency or currency unit, in the case of the
circumstances described in clause (i) above, or the payment currency or
currency unit in the absence of such election, in the case of the
circumstances described in clause (ii) above, shall, at the Company's
election, resume being the currency or currency unit of payment with respect
to Holders who have so elected, but only with respect to payments on payment
dates preceded by 15 Business Days during which the circumstances which gave
rise to such currency or currency unit, in the case of the circumstances
described in clause (i) above, or the Dollar, in the case of the circumstances
described in clause (ii) above, as applicable, becoming the currency or
currency unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by the Exchange Rate Agent by converting the specified
Foreign Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency (as each such term is defined
in paragraph (h) below) into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
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"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 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
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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.
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
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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).
Section 3.14. AGREED TAX TREATMENT. Each Security issued
hereunder shall provide that the Company and the Holder of such Security agree
(i) that for United States federal, state and local tax purposes it is
intended that such Security constitute indebtedness and (ii) to file all
United States federal, state and local tax returns and reports on such basis
(unless the Company or such Holder, as the case may be, shall have received an
opinion of independent nationally recognized tax counsel to the effect that as
a result of a change in law after the date of the issuance of such Security
the Company or such Holder, as the case may be, is prohibited from filing on
such basis).
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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 has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture 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.
(j) No event or condition shall exist that, pursuant to the
provisions of Article 12, would prevent the Company from making payments
of the principal of or interest on the Securities of such series and
coupons appertaining thereto on the date of such deposit.
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
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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.
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
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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 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
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any of the provisions of, this Indenture with respect to any Security of
that series (other than an agreement, covenant or provision for which
non-compliance is elsewhere in this Section specifically dealt with),
and such non-compliance continues for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of the series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(4) a default under any mortgage, agreement, indenture or
instrument under which there may be issued, or by which there may be
secured, guaranteed or evidenced any Debt of the Company (including this
Indenture) whether such Debt now exists or shall hereafter be created, in
an aggregate principal amount then outstanding of $25,000,000 or more,
which default (a) shall constitute a failure to pay any portion of the
principal of such Debt when due and payable after the expiration of 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
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the part of either the Trustee or any of such Holders; PROVIDED,
FURTHER, that the foregoing shall not apply to any secured Debt under
which the obligee has recourse (exclusive of recourse for ancillary
matters such as environmental indemnities, misapplication of funds,
costs of enforcement and the like) only to the collateral pledged for
repayment so long as the fair market value of such collateral does not
exceed 2% of Total Assets at the time of the default;
(5) the Company 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 this 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 this
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, PROVIDED, however, that payment of
principal and interest, if any, on the Securities of such series shall remain
subordinated to the extent provided in Article 12.
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,
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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 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, PROVIDED, however, that payment of all such amounts
shall remain subordinated to the extent provided in Article 12.
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
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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 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
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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 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
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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 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, subject to the
subordinated provisions hereof, 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
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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 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.
(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
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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.
(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
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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
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
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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 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
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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 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.
(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
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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
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
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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 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
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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 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
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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 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
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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 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
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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 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
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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.
AmSouth Bank N.A.,
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), 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;
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(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.
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, stat-
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ing that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to all
or any series of Securities (and if such Events of Default are to be for
the benefit of less than all series of Securities, stating that such
Events of Default are expressly included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to facilitate the issuance of
Bearer Securities (including, without limitation, to provide that Bearer
Securities may be registrable as to principal only) or to facilitate the
issuance of Securities in global form; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 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,
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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; or
(12) to modify the provisions of Article 12 (except, with respect
to any Outstanding Securities, to the extent prohibited by clause 5 of
Section 8.2).
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 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
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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; or
(5) modify the provisions of this Indenture with respect to the
subordination of the Outstanding Securities of any series in a manner
adverse to the Holders thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 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
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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 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
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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 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
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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 within the United
States, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities (including any coupons, if any) of
one or more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of
Payment for Securities (including any coupons, if any) of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise specified as contemplated by Section 3.1, 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
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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 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
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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 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
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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.
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.
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(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 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
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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 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.
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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, appertaining thereto must be surrendered to
the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion thereof,
to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is the
case;
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(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 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
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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 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
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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 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
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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.
ARTICLE 12
SUBORDINATION
Section 12.1. AGREEMENT TO SUBORDINATE. The Company agrees,
and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Security is subordinated in right of payment, to the extent
and in the manner provided in this Article 12, to the prior payment in full of
all Senior Indebtedness, and that the
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subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness, without any act or notice of acceptance hereof
or reliance hereon.
Section 12.2. CERTAIN DEFINITIONS.
"SENIOR INDEBTEDNESS" means (i) all indebtedness of the
Company, whether outstanding on the date hereof or thereafter created,
incurred or assumed, that is for borrowed money, or evidenced by a note or
similar instrument given in connection with the acquisition of any business,
properties or assets, including securities, (ii) any indebtedness of any
other Person of the kind described in the preceding clause (i) for the payment
of which the Company is responsible or liable as guarantor or otherwise and
(iii) amendments, renewals, extensions and refundings of any such
indebtedness. Senior Indebtedness shall continue to be Senior Indebtedness
and to be entitled to the benefits of the subordination provisions of this
Article 12 irrespective of any amendment, modification or waiver of any term
of the Senior Indebtedness or extension or renewal of the Senior Indebtedness.
Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
shall not include (A) any indebtedness of the Company to any of its
subsidiaries, (B) indebtedness incurred for the purchase of goods or
materials or for services obtained in the ordinary course of business and
(C) any indebtedness which by its terms is expressly made PARI PASSU
with or subordinated to the Securities.
Section 12.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY; ETC. In
the event of
(i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(ii) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors, or
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(iv) any other marshalling of the assets of the Company,
all Senior Indebtedness (including, without limitation, interest accruing
after the commencement of any such proceeding, assignment or marshalling of
assets) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made by the Company on
account of the Securities. In any such event, any payment or distribution,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or a
readjustment, the payment of which is subordinate, at least to the extent
provided in the subordination provisions of this Indenture with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the provisions of this Article 12) be payable or
deliverable in respect of the Securities (including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities) shall be paid or delivered directly to the holders of Senior
Indebtedness, or to their representative or trustee, in accordance with the
priorities then existing among such holders until all Senior Indebtedness
shall have been paid in full.
Section 12.4. DEFAULT ON SENIOR INDEBTEDNESS. If (i)
the Company defaults in the payment of any principal, or premium, if any, or
interest on any Senior Indebtedness when the same becomes due and payable,
whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default occurs with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
and written notice of such event of default (requesting that payments on the
Securities cease) is given to the Company by the holders of Senior
Indebtedness, then unless and until such default in payment or event of
default shall have been cured or waived or shall have ceased to exist, no
direct or indirect payment (in cash, property or securities, by set-off or
otherwise) shall be made or agreed to be made on account of the Securities or
interest thereon or in respect of any repayment, redemption,
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retirement, purchase or other acquisition of the Securities.
Section 12.5. WHEN DISTRIBUTION MUST BE PAID OVER. If a
distribution is made to the Trustee or any Holder at a time when a Responsible
Officer of the Trustee or such Holder has actual knowledge that because of
this Article 12 such distribution should not have been made to it, the Trustee
or such Holder who receives the distribution shall hold it in trust for the
benefit of, and, upon written request, shall pay it over to, the holders of
Senior Indebtedness as their interests may appear, or their agent or
representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
principal, premium, if any, and interest then payable with respect to any
Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or
on behalf of Holders or the Company or any other person money or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 12, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
Section 12.6. NOTICE BY COMPANY. The Company shall
promptly notify in writing the Trustee and any Paying Agent of any facts known
to the Company that would cause a payment with respect to the Securities to
violate this Article 12, but failure to give such notice shall not affect the
subordination of the Securities to the Senior Indebtedness provided in this
Article 12.
Section 12.7. SUBROGATION. Senior Indebtedness shall not be
deemed to have been paid in full unless the holders thereof shall have
received cash, securities or other property equal to the amount of such Senior
97
<PAGE>
Indebtedness then outstanding. After all Senior Indebtedness is paid in full
and until the Securities are paid in full, Holders shall be subrogated
(equally and ratably with all other indebtedness as to which the right to
receive payment is PARI PASSU with the Securities) to the rights of
holders of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the Holders
have been applied to the payment of Senior Indebtedness, and such payments or
distributions received by any Holder of Securities, by reason of such
subrogation, of cash, securities or other property which otherwise would be
paid or distributed to the holders of Senior Indebtedness, shall, as between
the Company and its creditors other than the holders of Senior Indebtedness,
on the one hand, and the Holders of Securities, on the other, be deemed to be
a payment by the Company on account of Senior Indebtedness, and not on account
of Securities.
Section 12.8. RELATIVE RIGHTS. This Article 12 defines the
relative rights of Holders and holders of Senior Indebtedness. Nothing in
this Indenture shall:
(i) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of
and interest on the Securities in accordance with their terms;
(ii) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(iii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article 12 to pay principal
of or interest on a Security on the due date, the failure is still a Default
or Event of Default.
Section 12.9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No
present or future holder of any Senior Indebtedness shall be prejudiced in the
right to enforce subordination of the indebtedness constituting the
98
<PAGE>
Securities by any act or failure to act on the part of the Company.
Section 12.10. DISTRIBUTION. Upon any payment or distribution
of assets of the Company referred to in this Article 12, the Trustee and the
Holders shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other Debt of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article 12.
Section 12.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 12 or any other provision of
this Indenture, neither the Trustee nor any Paying Agent shall be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment or distribution by the Trustee or such Paying Agent, or the taking of
any action by the Trustee or such Paying Agent, and the Trustee or such Paying
Agent may continue to make payments on the Securities unless, in the case of
the Trustee, and in the case of such Paying Agent as long as the Trustee is
such Paying Agent, a Responsible Officer shall have received at the Corporate
Trust Office of the Trustee, and in the case of a Paying Agent other than the
Trustee, it shall have received, in each case at least two Business Days prior
to the date of such payment, written notice of facts that would cause any such
payment with respect to the Securities to violate this Article 12. The
Trustee or any Paying Agent, as applicable, shall promptly provide a copy of
such notice to the Holders. Nothing in this Article 12 shall limit the right
of the holders of Senior Indebtedness to recover payments as contemplated
elsewhere in this Article 12 or impair the claims of, or payments to, the
Trustee under or pursuant to Section 6.9 hereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee
subject to Trust Indenture Act Sections 310(b) and 311. Any Agent may do the
same with like rights.
99
<PAGE>
Section 12.12. AUTHORIZATION TO EFFECT SUBORDINATION. Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article 12, and appoints
the Trustee his attorney-in-fact for any and all such purposes.
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:
-----------------------
Title:
[Seal]
Attest:
- ----------------------------
Secretary
AMSOUTH BANK N.A.
By:_______________________
Title:
[Seal]
Attest:
- ----------------------------
Title:
100
<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of ___________________, 1994
("Guarantee Agreement"), executed and delivered by Protective Life Corporation,
a Delaware corporation (the "Guarantor"), for the benefit of the Holders (as
defined below) from time to time of the Series A Preferred Securities (as
defined below) of PLC Capital L.L.C., a Delaware limited liability company (the
"Company").
WHEREAS, preferred limited liability company interests ("Preferred
Securities") may be issued from time to time by the Company in one or more
series in addition to the Company's common limited liability company interests
(the "Common Securities");
WHEREAS, the Company intends to issue up to [ ]%
Cumulative Monthly Income Preferred Securities, Series A (the "Series A
Preferred Securities");
WHEREAS, it is intended that the Company will loan the proceeds
from the issuance and sale of the Series A Preferred Securities and the Common
Securities to the Guarantor in exchange for Series A Subordinated Debentures
(as defined below) issued by the Guarantor;
NOW, THEREFORE, in consideration of the purchase by each Holder
of the Series A Preferred Securities, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders.
ARTICLE I
Definitions
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the following meanings.
AFFILIATE: of any specified Person, 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
<PAGE>
the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
EVENT OF DEFAULT: as defined in the Subordinated Indenture and
in any supplemental subordinated indenture or Board Resolution (as defined
in the Subordinated Indenture) of the Company setting forth the terms of
the Series A Preferred Securities.
GUARANTEE PAYMENTS: the following payments, without
duplication, to the extent not paid by the Company: (I) any
accumulated and unpaid periodic distributions ("dividends") that have
theretofore been declared on the Series A Preferred Securities out of
funds held by the Company and legally available therefor; (II) the
redemption price (including all accumulated and unpaid dividends,
whether or not declared) payable, out of funds held by the Company and
legally available therefor, with respect to the Series A Preferred
Securities called for redemption by the Company; and (III) in the
event of any liquidation, dissolution or winding-up of the Company, the
lesser of (A) the aggregate of the liquidation preference of the
Series A Preferred Securities and all accumulated and unpaid dividends
(whether or not declared) to the date of payment and (B) the amount of
remaining assets of the Company legally available to the Holders.
HOLDER: any registered owner from time to time of Series A
Preferred Securities, PROVIDED, however, that in determining whether
the Holders of the requisite percentage of the Series A Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor or Affiliate of the Guarantor,
either directly or indirectly.
PERSON: any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
SENIOR INDEBTEDNESS: as defined in the Subordinated Indenture.
SERIES A SUBORDINATED DEBENTURE: any of the Series A
Subordinated Debentures as may be issued from time to time by the
Guarantor pursuant to the Subordinated Indenture.
2
<PAGE>
SHARE PURCHASE RIGHTS PLAN: the Rights Agreement, dated July
13, 1987, between the Guarantor and AmSouth Bank N.A., Rights Agent, as
amended from time to time.
SUBORDINATED INDENTURE: the Subordinated Indenture, dated as of
__________, 1994, between the Guarantor and Amsouth Bank N.A., as
Trustee.
ARTICLE II
The Guarantee
2.1. (a) The Guarantor irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments (except to the extent paid
by the Company), as and when due, regardless of any defense, right of set-off
or counterclaim which the Company may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by causing the Company
to pay such amounts to the Holders.
(b) In addition, the Guarantor irrevocably and unconditionally
guarantees, in the event of any exchange by the Company of Series A Preferred
Securities for Series A Subordinated Debentures, the delivery of a registered
global certificate or certificates representing the proper amount of Series A
Subordinated Debentures to the Depository Trust Company, New York, New York,
or such other entity or person as shall at the date of exchange be acting as
securities depository for the Series A Preferred Securities of such series.
2.2. The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
2.3. The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Company of any express or implied
agreement, covenant,
3
<PAGE>
term or condition relating to the Series A Preferred Securities to be
performed or observed by the Company;
(b) the extension of time for the payment by the Company of all
or any portion of the dividends, redemption price, liquidation
distributions or any other sums payable under the terms of the Series A
Preferred Securities or the extension of time for the performance of any
other obligations under, arising out of, or in connection with, the
Series A Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the
Series A Preferred Securities, or any action on the part of the Company
granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Company or any of the assets of the Company;
(e) any invalidity of, or defect or deficiency in, any of the
Series A Preferred Securities of any series; or
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the
foregoing.
2.4. This is a guarantee of payment and not of collection. A
Holder may enforce this Guarantee Agreement directly against the Guarantor,
and the Guarantor will waive any right or remedy to require that any action be
brought against the Company or any other person or entity before proceeding
against the Guarantor. Subject to Section 2.5, all waivers herein contained
shall be without prejudice to the Holders' right at the Holders' option to
proceed against the Company, whether by separate action or by joinder. The
Guarantor agrees that this Guarantee Agreement shall not be
4
<PAGE>
discharged except by payment of the Guarantee Payments in full (to the extent
not paid by the Company) and by complete performance of all obligations of the
Guarantor contained in this Guarantee Agreement.
2.5. The Guarantor shall be subrogated to all rights (if any) of
the Holders against the Company in respect of any amounts paid to the Holders
by the Guarantor under this Guarantee Agreement and shall have the right to
waive payment of any amount in respect of which payment has been made to the
Holders by the Guarantor pursuant to Section 2.1, PROVIDED, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of a
payment under this Guarantee Agreement, if at the time of any such payment,
any amounts are due and unpaid under this Guarantee Agreement. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to pay over such amount to the Holders.
2.6. The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Company with respect to the
Series A Preferred Securities and that the Guarantor shall be liable as
principal and sole debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (f), inclusive, of Section 2.3.
ARTICLE III
Certain Covenants of the Guarantor
and Status of the Guarantee
3.1. So long as any Series A Preferred Securities remain
outstanding, if at such time the Guarantor (a) shall have extended the
period to the next interest payment date under the Series A Subordination
Debentures, (b) shall be in default with respect to its payment or other
obligations under this Guarantee Agreement (c) there shall have occurred any
Event of Default or event that, with the giving of notice or the lapse of time
or both, would constitute an Event of Default under the Subordinated Indenture
or (d) there shall exist any arrearage in payment of accumulated dividends
on the Series A Preferred Securities, neither the Guarantor nor any
majority-owned subsidiary of the Guarantor shall
declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock or make any
guarantee payments with respect to the
5
<PAGE>
foregoing (other than (i) payments under this Guarantee Agreement or any
other guarantee of any other series of Preferred Securities ranking PARI
PASSU with the Series A Preferred Securities, (ii) dividends or guarantee
payments to the Guarantor or (iii) redemptions or purchases pursuant to the
Guarantor's Share Purchase Rights Plan, or any successor to such Plan).
3.2. The Guarantor covenants that, so long as any Preferred
Securities of any series remain outstanding, (i) it shall maintain
ownership, directly or indirectly, of 100% of the Common Securities, (ii) it
shall not voluntarily dissolve, wind-up or liquidate the Company or permit
the Company to be dissolved, wound-up or liquidated and (iii)
it shall timely perform all of its respective duties under the limited
liability company agreement of the Company.
3.3. This Guarantee Agreement constitutes an unsecured obligation
of the Guarantor, is subordinate and junior in right of payment to all
Senior Indebtedness, and ranks PARI PASSU with the Series A Subordinated
Debentures.
ARTICLE IV
Termination of the Guarantee
4.1. This Guarantee Agreement shall terminate and be of no
further force and effect as to the Series A Preferred Securities upon either
(i) full payment of the redemption price (including all accumulated arrears
and accruals of unpaid dividends) for all outstanding Preferred Securities of
such series or (ii) full payment of the amounts payable to the Holders of
such series upon liquidation of the Company, or (iii) exchange of all Series
A Preferred Securities for Series A Subordinated Debentures, PROVIDED,
however, that this Guarantee Agreement shall continue to be effective or shall
be reinstated, as the case may be, with respect to Series A Preferred
Securities if at any time any Holder of Series A Preferred Securities must
restore payment of any sums paid under the Series A Preferred Securities or
under this Guarantee Agreement for any reason whatsoever.
6
<PAGE>
ARTICLE V
Miscellaneous Agreements and Provisions
5.1. All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders. The Guarantor shall not assign its obligations hereunder without the
prior approval of the Holders of not less than 66-2/3% in liquidation
preference of the Series A Preferred Securities then outstanding given either
in writing or by vote at a duly constituted meeting of such Holders.
5.2. Except with respect to amendments that do not adversely
affect the rights of Holders (in which case no vote will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than 66-2/3% in liquidation preference of the Series A Preferred
Securities then outstanding given either by agreement in writing or by vote at
a duly constituted meeting of such Holders who may be present in person or by
proxy and voting as a single class.
5.3. Any notice, request or other communication required or
permitted to be given hereunder to the Guarantor shall be given in writing and
delivered personally or by telegram or facsimile transmission or by registered
or certified mail (return receipt requested) at the following address (and, if
so given, shall be deemed effective when received), to it:
Protective Life Corporation
P.O. Box 2606
Birmingham, Alabama 35202
Facsimile No.: (205) 868-3597
Attention: Deborah J. Long, Esq.
Senior Vice President
and General Counsel
Any notice, request or other communication required or permitted to be given
hereunder to the Holders shall be given by the Guarantor in the same manner as
notices sent by the Company to the Holders.
5.4. The masculine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
7
<PAGE>
5.5. This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Series A Preferred
Securities.
5.6. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
PROTECTIVE LIFE CORPORATION
By:
-------------------------------
Name:
Title:
Accepted and Agreed:
PLC CAPITAL L.L.C.
By: Protective Life Corporation,
as Managing Member
By:
---------------------------
Name:
Title:
8
<PAGE>
- -------------------------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b)(2)
------
---------------------------
AMSOUTH BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 63-0073530
(State of incorporation if (I.R.S Employer
not a U.S. national bank) Identification Number)
1900 FIFTH AVENUE NORTH 35303
BIRMINGHAM, ALABAMA (Zip code)
(Address of principal executive offices)
James D. Pruett
AmSouth Bank N.A.
Law Department
P.O. Box 11007
Birmingham, Alabama 35288
(205) 326-7607
(name, address and telephone number of agent for service)
---------------------------
PROTECTIVE LIFE CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 95-2492236
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification Number)
2801 HIGHWAY 280 SOUTH 35223
BIRMINGHAM, ALABAMA (Zip code)
(Address of principal executive offices)
---------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
- -------------------------------------------------------------------------------
154510
<PAGE>
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee --
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C. 20220
Federal Reserve Bank, Atlanta, Georgia 30303
Federal Deposit Insurance Corporation, Washington, D.C 20429
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. VOTING SECURITIES OF THE TRUSTEE.
Not applicable.
Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
Not applicable.
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
Not applicable.
Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Not applicable.
Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Not applicable.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Not applicable.
Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
Not applicable.
2
<PAGE>
Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
Not applicable.
Item 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEES OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
Not applicable.
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Not applicable.
Item 13. DEFAULTS BY THE OBLIGOR.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
There is not and has not been any such default.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than
one outstanding series of securities under the indenture, state whether
there has been a default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such default.
Not applicable.
Item 14. AFFILIATIONS WITH THE UNDERWRITERS.
Not applicable.
Item 15. FOREIGN TRUSTEE.
Not applicable.
Item 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in effect
(Exhibit 1 to Form T-1, file with Registration Statement
No. 22-23666).
2. A copy of the certificate of authority of the trustee to commence
business (Exhibit 2 to Form T-1, filed with Registration Statement
No. 22-23666).
3
<PAGE>
3. A copy of the authorization of the trustee to exercise corporate trust
powers (Exhibit 3 to Form T-1, filed with Registration Statement
No. 22-23666).
4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee as the close of
business on December 31, 1993, published pursuant to the
requirements of the Comptroller of the Currency.
8. Not applicable.
9. Not applicable.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
AmSouth Bank, National Association, a corporation organized and existing under
the laws of the United States of America, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Birmingham, State of Alabama on
the 24th day of March, 1994.
AMSOUTH BANK, NATIONAL ASSOCIATION
By /s/ T. FRANKLIN CALEY
--------------------------------
T. Franklin Caley
Vice President and Corporate Trust Officer
5
<PAGE>
EXHIBIT 4
<PAGE>
- ------------------------------------------------------------------------------
AAB 200-1
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article I -- Meetings of
Shareholders
Date: May, 1990
- ------------------------------------------------------------------------------
SECTION 1.1: ANNUAL MEETING
The annual meeting of the shareholders of this Bank
for the election of directors and for the trans-
action of any business that may properly come before
the meeting shall be held at its Main Office or at
such other place as the Board of Directors may
designate, on the third Thursday in April of each
year, but if no election shall be held on that day,
it may be held on any subsequent or adjourned day in
accordance with the provisions of the National
Banking Laws and the Articles of Association.
Notice of the annual meeting may be waived.
SECTION 1.2: SPECIAL MEETINGS
Except where specifically provided otherwise by
statute, special meetings of the shareholders may be
called for any purpose at any time by the Board of
Directors or by the holder(s) of at least a majority
of the shares of such stock at the time outstanding,
and such special meetings shall be called by mailing
to each shareholder notice in writing stating the
purpose thereof sixty (60) days before the time
fixed for the meeting. Such notice may be waived by
the shareholder otherwise entitled to receive such
notice.
SECTION 1.3: NOMINATIONS FOR DIRECTOR
Nominations for election to the Board of Directors
may be made by the Board of Directors.
SECTION 1.4: PROXIES
Shareholders may vote at any meeting of the share-
holders by proxies duly authorized in writing, but
no officer or employee of this Bank shall act as
proxy.
Page: 1
<PAGE>
- ------------------------------------------------------------------------------
AAB 200-1
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article I -- Meetings of
Shareholders
Date: May, 1990
- ------------------------------------------------------------------------------
SECTION 1.4 Proxies for any meeting shall be limited to that
(Cont...): meeting alone, and any adjournment thereof shall be
dated and shall be filed with the records of the
meeting.
SECTION 1.5: SHAREHOLDER LIST
For the purpose of determining shareholders entitled
to notice of or to vote at any meeting of share-
holders or any adjournment thereof, or shareholders
entitled to receive payment of any dividend, or in
order to make a determination of shareholders for
any other proper purpose, the Board of Directors may
provide that the stock transfer books of the Bank
shall be closed for a stated period but not to
exceed, in any case, thirty (30) days. If the stock
transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to
vote at a meeting of shareholders, such books shall
be closed for at least ten (10) days immediately
preceding such meeting. In lieu of closing the
stock transfer books, the Board of Directors may fix
in advance a date as the record date for any such
determination of shareholders, such date in any case
to be not more than fifty (50) days, and in case of
a meeting of shareholders, not less than ten (10)
days prior to the date on which the particular
action, requiring such determination of share-
holders, is to be taken. If the stock transfer
books are not closed and no record date is fixed for
the determination of shareholders entitled to notice
or to vote at a meeting of shareholders, or share-
holders entitled to receive payment of a dividend,
the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such
determination of shareholders. When a determination
of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this
section, such determination shall apply to any
adjournment thereof, except where the determination
Page: 2
<PAGE>
- ------------------------------------------------------------------------------
AAB 200-1
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article I -- Meetings of
Shareholders
Date: May, 1990
- ------------------------------------------------------------------------------
SECTION 1.5 has been made through the closing of the stock
(Cont...): transfer books and the stated period of closing has
expired.
SECTION 1.6: QUORUM
Shares of the capital stock of the Bank representing
more than one-half of the par value of the total
capital stock outstanding, represented in person or
by proxy, shall constitute a quorum in all meetings
of shareholders, and at such meetings each share of
common stock shall be entitled to one (1) vote.
Page: 3
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-2
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL
(AMSOUTH BANK N.A.)
Subject: Article II -- Directors
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 2.1: BOARD OF DIRECTORS: NUMBER, VACANCIES,
QUALIFICATIONS
The affairs of the Bank shall be managed by a Board
of Directors which shall consist of not less than
five (5) nor more than twenty-five (25) persons, the
exact number, within the limits stated, to be deter-
mined from time to time by resolution of a majority
of the full Board or by resolution of the share-
holders at any meeting thereof; provided, however,
that a majority of the full Board of Directors may
not increase the number of directors: (i) to a
number which exceeds by more than two (2) the number
of directors last elected by shareholders where such
number was fifteen (15) or less; and (ii) to a num-
ber which exceeds by more than four (4) the number
of directors last elected by shareholders where such
number was sixteen (16) or more, but in no event
shall the number of directors exceed twenty-five
(25). All the vacancies in the Board of Directors
occurring in the interval between the annual meet-
ings shall be filled by the remaining members of the
Board.
No person who shall have reached the age of sixty-
five (65) shall be eligible for election or re-
election as a director. No person shall be eligible
for election or re-election as a director of this
Bank (1) three years after retiring from active
business, (2) one year after permanent separation
from the business or professional organization with
which such person was primarily associated when
first elected a director, or (3) one year after mov-
ing his/her principal residence outside the State of
Alabama, whichever event first occurs. Any director
who is an officer of the Bank, or any subsidiary
thereof, shall resign as a director effective on the
date he has retired from or otherwise vacated his
office. On recommendation of the Nominating
Committee, the application to an individual of any
provision of this paragraph may be waived by the
Board of Directors. Any such waiver shall only be
effective on a year-to-year basis.
Page: 1
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-2
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL
(AMSOUTH BANK N.A.)
Subject: Article II -- Directors
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 2.2: ORGANIZATION MEETING
The Chairman of the Board shall notify the directors
of their election and of the time and place for them
to meet for the organization of the new Board. This
meeting shall be held within one (1) week from the
time of their election, or as soon thereafter as
practicable. If at the time fixed for such a meet-
ing there shall be no quorum in attendance, the
directors-elect present may adjourn from time to
time until a quorum shall be obtained.
SECTION 2.3: REGULAR AND SPECIAL MEETINGS; FEES
Regular meetings of the Board of Directors shall be
held on the third Thursday in each month (unless
such date shall fall on a bank holiday, in which
event the meeting shall be upon the next succeeding
business day) at 10:00 a.m. or at such other hour as
may be designated by the Board. Special meetings of
the Board may be called by any of the Executive
Officers (as defined in Section 4.1), senior to the
Executive Vice Presidents, or any seven (7) direc-
tors, and at least one (1) day's notice of such
meetings shall be given to all directors, unless in
the opinion of the officer or directors calling the
meeting an emergency exists which requires less than
one (1) day's notice, in which event only such
notice need be given as such officer or directors
shall direct. Any of the directors not receiving
notice may subsequently waive such notice by filing
with the Secretary a paper in writing to that
effect, subscribed by him/her at any time within
five (5) days thereafter, or by subscribing his/her
approval of the minutes. The attendance of a
director at a meeting shall constitute a waiver of
notice of such meeting, except where a director
attends a meeting for the express purpose of
objecting to the transaction of any business because
the meeting is not lawfully called or convened.
Page: 2
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-2
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL
(AMSOUTH BANK N.A.)
Subject: Article II -- Directors
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 2.3 By a resolution of the Board of Directors, the
(Cont ...): directors may be paid for their expenses, if any, for
attendance at each meeting of the Board of Directors
or any committee thereof, and may be paid a fixed
sum for attendance at each meeting or a stated
salary as director, or both.
SECTION 2.4: QUORUM
A majority of the Board of Directors shall consti-
tute a quorum for the transaction of business,
except when otherwise provided by law; but a lesser
number may adjourn any meeting, from time to time,
and the meeting may be held, as adjourned, without
further notice.
Page: 3
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
Articles of Association Section: BY-LAWS
and By-Laws Manual (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.1: EXECUTIVE COMMITTEE
A. POWERS AND DUTIES. There shall be an Executive
Committee of the Board of Directors which, in the
interim between the meetings of the Board, shall
have and may exercise all of the authority and
powers of the Board of Directors to the extent per-
mitted by law. The Executive Committee shall also
review or approve extensions of credit in such
amounts as the Committee may by resolution from time
to time determine. The Executive Committee shall
keep the Board of Directors informed of the condi-
tion of the Bank and shall report to it at each
regular meeting any and all acts done and performed
by the Committee subsequent to the preceding meeting
of the Board, except such acts as are of a purely
formal nature. To exercise its powers and duties,
the Committee shall meet on each first and third
Thursday of the month or more frequently on the call
of its Chairman; the times of meeting to be fixed by
the Committee from time to time.
B. MEMBERSHIP. The Executive Committee shall
consist of such number of members drawn from the
Board of Directors, not officers of the Bank, as the
Board of Directors may determine by resolution from
time to time, and the following ex-officio members:
Chairman of the Board and President of the Bank, and
the Vice Chairman of the Bank. The Chief Executive
Officer of the Bank shall serve as chairman of the
committee. The chairman shall preside or designate
another member of the Committee to preside at meet-
ings of the committee. The members of the Executive
Committee who are not officers of the Bank, shall
serve terms of office as shall be specified at the
time of their election, which shall be staggered so
that a rotation of the membership shall be main-
tained. Any of such members will be eligible to
succeed themselves and shall serve until his/her
successor is elected.
Page: 1
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.2: TRUST COMMITTEE
A. POWERS AND DUTIES. The Trust Committee of the
Board of Directors shall supervise and keep informed
as to the operation of the Trust Division of the
Bank and the operation of the accounts being admin-
istered by the Trust Division; consider and pass
upon all investments of trust funds and upon poli-
cies with respect to loans and investments; pass
upon the acceptance and closing of accounts; review
promptly the assets of a newly acquired account for
which the Bank has investment responsibilities;
review at least once during each calendar year, and
within fifteen (15) months of the last review, all
the assets held in or for each account where the
Bank has investment responsibilities; determine the
advisability of retaining or disposing of such
assets; and otherwise perform such duties as may be
provided by the Board. The Trust Committee may
create sub-committees consisting of Trust Division
officers and employees to assist in carrying out the
supervisory and review function of the Trust
Committee.
B. HOW ORGANIZED. The Trust Committee shall
consist of such number of directors who are not
officers of the Bank as shall be determined by
resolution of the Board of Directors from time to
time and, as ex-officio members, the directors of
the Bank who are also officers of the Bank and the
officer designated by the Board of Directors as head
of the Trust Division. The Committee shall be
chaired by the head of the Trust Division. The
members who are not officers of the Bank shall serve
a term of office as shall be specified at the time
of their election, which shall be staggered so that
a rotation of the membership shall be maintained.
Such members shall serve until their successors are
elected and shall be eligible to succeed themselves
in office. The Committee shall meet monthly; the
time and date to be fixed by the Committee from time
to time.
Page: 2
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.3: AUDIT COMMITTEE
There shall be an Audit Committee of the Board of
Directors, to consist of such number of directors
who are not officers of the Bank as shall be deter-
mined by resolution of the Board of Directors from
time to time. Members of the Audit Committee shall
serve a term of office of three (3) years, with the
appropriate number of members rotating each year.
Members of this committee shall serve until their
successors are elected and shall be eligible for
reappointment. The Audit Committee shall meet
quarterly; the time and date to be fixed by the
committee from time to time. The Audit Committee
shall audit and examine the condition of the Bank
(including its Trust Division), shall review all
reports of audits of the Bank, shall review the
asset quality of the bank, shall monitor compliance
with the various laws and regulations to which the
Bank is subject, and shall report its findings and
recommendations to the Board of Directors.
SECTION 3.4: COMPENSATION COMMITTEE
The Compensation Committee of the Board of Directors
of this Bank's parent company, AmSouth Bancorpora-
tion, shall serve as the Compensation Committee of
this Bank and such Committee is hereby given the
power and authority on behalf of this Bank to take
all actions authorized or required in Section 3.12
of the By-Laws of AmSouth Bancorporation, or
otherwise.
SECTION 3.5: NOMINATING COMMITTEE
There shall be a Nominating Committee of the Board
of Directors, to consist of such number of directors
who are not officers of the Bank as shall be desig-
nated from time to time by resolution of the Board
of Directors, who shall serve for a term of three
(3) years, with the appropriate number of members
Page: 3
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.5 rotating each year. Members shall serve until their
(Cont...): successors are elected and shall be eligible to suc-
ceed themselves. The Committee shall meet upon the
call of the Chairman; the time and date to be fixed
by the Committee from time to time.
All recommendations for potential nominees to the
Board of Directors shall be referred to the Nomina-
ting Committee which shall review the qualifications
of such potential nominees and make recommendations
to the Chief Executive Officer and the Board of
Directors with respect to such potential nominees.
The Nominating Committee will also review the struc-
ture of the Board and its operation and recommend
changes to the Board of Directors where appropriate.
The Committee will also review and recommend appro-
priate changes in Board compensation and Board
retirement policies.
SECTION 3.6: LOCAL BOARDS
The Board of Directors may appoint, or authorize an
executive officer to appoint, from time to time,
Local Boards of Directors for any one or more of the
offices of the Bank. The members of Local Boards of
Directors shall consist of such persons as shall be
recommended by the Chief Executive Officer of this
Bank upon the recommendation of the senior officer
for the geographic area in which is located the
office of the Bank on which Local Board the indi-
vidual will serve and shall be approved by vote of
the then members of the affected Local Board of
Directors. Such persons may, but are not required
to be, officers or directors of the Bank. Local
Boards of Directors shall serve at the pleasure of
the Board of Directors. No persons shall be elig-
ible for appointment to or to continue service on a
Local Board of Directors (1) who shall have reached
the age of 68, (2) three years after retiring from
active business, (3) one year after permanent sepa-
ration from the business or professional organiza-
tion with which such person was primarily associated
Page: 4
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.6 when first appointed a Local Director, or (4) one
(Cont...): year after moving his/her principal residence out-
side the market area of the city that is being
served, whichever event first occurs. No Local
Director who is an officer of the Bank, or any
subsidiary thereof, shall be eligible for appoint-
ment or reappointment as a Local Director after he
has retired from or otherwise vacated his office.
The Chief Executive Officer may waive any of the
provisions of the preceding sentence effective on a
year-to-year basis. The duties of Local Boards of
Directors shall be those prescribed by resolution of
the Board of Directors.
SECTION 3.7: QUORUM
A majority of the respective committees shall
constitute a quorum for the transaction of business,
but any committee shall be authorized and empowered
to act by unanimous consent in the following manner,
without notice, call or formal meeting: Any resolu-
tion, proceeding or transaction, approved in writing
by all of the members of such committee by the sub-
scription of their names in writing to the same or
concurrent instruments or to the minutes thereof,
shall be valid and effective as if such action were
taken by unanimous vote at a regularly called meet-
ing of such committee and shall be entered in the
minutes of the respective committee, dated and
certified by the Secretary.
In the absence of a quorum at any meeting of any of
the respective committees, any of the Executive
Officers (or in the case of the Trust Committee, any
of the Executive Officers or the head of the Trust
Division) may designate an alternate director to
serve as a member of the committee at such meeting
in place of any absent member.
Page: 5
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-3
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article III - Committees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 3.8: OTHER COMMITTEES
The Board of Directors or the Executive Committee
may appoint, from time to time, members of the Board
to constitute other committees of one (1) or more
persons, for such purposes and with such powers as
the Board or the Executive Committee, whichever
appointed the Committee, may designate.
Page: 6
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.1: GENERAL
(a) NUMBER. The officers of this Bank shall consist
of a Chairman of the Board of Directors, President,
and Chief Executive Officer, one or more Vice
Chairmen of the Board of Directors, one or more Vice
Presidents (one or more of whom may be designated by
such additional title as the Board of Directors may
determine), a Secretary, one or more Assistant
Secretaries, and may also include one or more Trust
Officers, one or more Assistant Vice Presidents, one
or more Assistant Trust Officers, a Controller, and
such other officers as the Board of Directors may
from time to time determine.
(b) EXECUTIVE OFFICERS; ORDER OF AUTHORITY. As used
in these By-Laws, the term "Executive Officers"
shall include the Chairman of the Board, President,
and Chief Executive Officer, the Vice Chairmen of
the Board, the Senior Executive Vice Presidents, and
the Executive Vice Presidents. Their "order of
authority" shall be the order in which their titles
are listed above; except that, where there are two
or more Vice Chairmen of the Board or two or more
Senior Executive Vice Presidents or Executive Vice
Presidents, their order of authority shall be as
designated by the Board or Compensation Committee.
Notwithstanding anything to the contrary contained
in this Section 4.1 or elsewhere in these By-Laws,
no one other than the members of the Management
Committee of this Bank's parent company, AmSouth
Bancorporation, shall participate or have the
authority to participate, otherwise than in the
capacity of a director, in major policy-making
functions of the Bank. All officers of this Bank
other than the members of the Management Committee
of this Bank's parent company, AmSouth Bancorpora-
tion, shall be excluded from major policy-making
functions of this Bank, otherwise than in the capa-
city of a director of this Bank. Executive officers
of all other AmSouth Bancorporation affiliates
Page: 1
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.1 (other than members of the AmSouth Bancorporation
(Cont...): Management Committee) and of subsidiaries of this
Bank are excluded from participation in major
policy-making functions of this Bank.
(c) MANNER OF ELECTION; TERM OF OFFICE; REMOVAL.
The Board of Directors or its Executive Committee
shall approve the election of any person to an
office carrying the title of Vice President or
above. Appointment of employees and election of
persons to an office below Vice President shall be
made as provided in the Personnel Policy of AmSouth
Bancorporation. Compensation of all officers and
employees shall be fixed as provided in the Person-
nel Policy of AmSouth Bancorporation. Removal from
office of the Chairman of the Board and President,
and the Vice Chairman of the Board shall be by the
Board of Directors or by the Executive Committee.
All other officers and employees may be removed from
office by any of the three Executive Officers having
the highest order of authority or by any person so
authorized by the Personnel Policies and Procedures
of AmSouth Bancorporation.
(d) VACANCIES. Vacancies shall be filled as soon as
deemed practicable. In the event of a vacancy in
any of the offices of the Executive Officers, any of
the other Executive Officers remaining active may be
elected to fill the vacancy in such office for such
a period as the Board of Directors may determine or
until further action by the Board.
SECTION 4.2: CHAIRMAN OF THE BOARD AND PRESIDENT
The Chairman of the Board and President shall be the
Chief Executive Officer of the Bank and shall pre-
side or designate another Executive Officer to pre-
side at all regular, called, or special meetings of
the Board and adjournments thereof. Subject to the
Page: 2
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.2 control of the Board of Directors, of the Executive
(Cont...): Committee and of other Committees of the Board hav-
ing authority, he shall be vested with authority to
act for the Bank in all matters to the extent that
such delegation of authority may not be contrary to
law, and shall have general charge of the Bank and
of its business and affairs, including authority
over the detailed operations of the Bank and over
its employees, and subject to the limitations
stated, with full power and authority to do and
perform in the name of the Bank all acts necessary
or proper in his opinion to be done and performed
and to execute for and in the name of the Bank all
instruments, agreements, and deeds which may be
authorized to be executed on behalf of the Bank or
are required by law.
SECTION 4.3: VICE CHAIRMEN OF THE BOARD
The Vice Chairmen of the Board shall, subject to the
control of the Board of Directors, the Executive
Committee, and other committees of the Board having
the authority and of the Chief Executive Officer, be
vested with authority to act for the Bank in all
matters to the extent that such delegation of au-
thority may not be contrary to law. They shall have
the same power to sign for the Bank as prescribed in
these By-Laws for the Chief Executive Officer. They
shall perform all duties incidental to the office
and shall perform such other duties as may be
assigned from time to time by the Board of Directors
or the Chief Executive Officer. In the absence of
the Chief Executive Officer, one of them shall
preside at meetings of stockholders, the Board of
Directors, and the Executive Committee.
SECTION 4.4: OTHER EXECUTIVE OFFICERS
In the absence of the Chief Executive Officer and of
the Vice Chairmen, and unless otherwise directed by
the Chief Executive Officer or one of the Vice
Page: 3
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.4 Chairmen, the Executive Officers, in their order of
(Cont...): authority, shall preside at the meetings of the
Board. Each of the Executive Officers shall (sub-
ject to the control of the Board of Directors and of
the committees of the Board having authority and to
the control of the Chief Executive Officer or the
Vice Chairmen) have and may exercise authority to
act for the Bank in all matters to the extent that
such delegation of authority may not be contrary to
law and in general to discharge the functions and to
exercise the authority vested in the Chief Executive
Officer in matters not otherwise acted upon by the
Chief Executive Officer or by other Executive
Officers prior in their order of authority. Subject
to the limitations stated above, such authority of
each Executive Officer shall include authority over
the operations of the Bank within his assigned areas
of responsibility and over assigned employees, and
authority to do and perform in the name of the Bank
all acts necessary or proper, in his opinion, to be
done and performed, and to execute for and in the
name of the Bank all instruments, agreements, and
deeds which may be authorized to be executed on
behalf of the Bank or required by law.
SECTION 4.5: VICE PRESIDENTS
Any Vice President shall have authority to execute
in the name of the Bank stock certificates of the
Bank and transfers, conveyances, certificates,
releases, satisfactions, authentications, options,
proxies, leases, including oil, gas and other
mineral leases, agreements, or other instruments
pertaining to investment, assets, or commercial
operations of the Bank or powers held or controlled
by the Bank, other than in a fiduciary capacity or
constituting a function of the Trust Division as to
which authority is vested in Vice Presidents and
Trust Officers. The Vice Presidents shall have such
other powers as are from time to time conferred upon
them by the Board of Directors, committees of the
Board, and the Executive Officers.
Page: 4
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.6: HEAD OF THE TRUST DIVISION
The Executive Vice President and Trust Officer, or
such other officer designated by the Board of
Directors as the head of the Trust Division shall
have all of the powers and authority vested in any
Vice President and Trust Officer, and in addition,
shall be in charge of and exercise general
supervision and management over the affairs of the
Trust Division; shall be empowered, in his
discretion, to appoint all necessary agents and
attorneys, and shall have such other duties and
powers as shall be designated by the Board of
Directors.
SECTION 4.7: VICE PRESIDENTS AND TRUST OFFICERS
Each Vice President and Trust Officer shall have all
of the powers vested in any Trust Officer or Assis-
tant Trust Officer, and in addition is empowered to
execute all deeds, conveyances, mortgages, con-
tracts, bonds, bills of sale, trust or agency agree-
ments, indentures or deeds of trust, notes, assign-
ments, powers of attorney or of substitution, or any
other instrument incident to the acceptance of any
trust, or the pledge, sale, or other disposition of
any property, rights, or powers held or controlled
by the Bank in any fiduciary capacity; to purchase,
sell, pledge, or otherwise dispose of stocks, bonds,
or any other securities, or property of any kind,
real or personal, for trust accounts; and to perform
such other duties as may be authorized by the Board
of Directors, Executive Committee, or Trust
Committee.
Any officer who may be designated as Senior Vice
President and Trust Officer, or Vice President and
Investment Officer, or Vice President and Senior
Trust Investment Officer, or Vice President and
Real Estate Officer shall have the same powers as
a Vice President and Trust Officer, and such other
authority and responsibility as may be provided by
the Board of Directors, the Trust Committee, or by
the head of the Trust Division.
Page: 5
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.8: TRUST OFFICERS AND ASSISTANT TRUST OFFICERS
Each Trust Officer who is not also a Vice President
and any Assistant Trust Officer and any other
officer of this Bank assigned to work in the Trust
Division of this Bank shall have the power to
execute all certificates, releases, satisfactions,
authentications (including authentication of bonds),
proxies, leases (including oil, gas, and other
mineral leases), transfers, receipts, agreements, or
other instruments pertaining to or incident to the
management or handling of any property, right, or
powers held or controlled by the Bank in any fidu-
ciary capacity, or pertaining to or incident to the
management or handling of any trust accounts under
the supervision or management of the Bank.
Each Trust Officer and each Assistant Trust Officer
and any other officer of this Bank assigned to work
in the Trust Division of this Bank in addition may
execute in the name of the Bank stock certificates
of corporations for which the Bank is transfer agent
or registrar, and mortgages, indentures, or deeds of
trust of a corporate nature in connection with which
the Bank is to act in trustee for holders of bonds
or debentures. Each Trust Officer and each Assist-
ant Trust Officer and any other officer of this Bank
assigned to work in the Trust Division of this Bank
shall also have the authority to affix and attest
the corporate seal, and perform such other duties as
may be authorized by the Board of Directors, the
Trust Committee, or by the head of the Trust
Division.
SECTION 4.9: CONTROLLER
The Controller shall have custody of the Bank's
general acounting records, shall prepare financial
statements, tax returns, profit plans, and reports
to regulatory authorities and shall have such other
duties as the Chief Executive Officer or Chief
Operating Officer may assign him from time to time.
Page: 6
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.10: SECRETARY
The Secretary shall have the custody of the records
and shall keep and record the minutes of the meet-
ings of stockholders and of the Board of Directors
and of all Committees of the Board, but any other
officer may also act as secretary of the meetings
and attest and certify minutes of the Board and
Committees thereof. Minutes shall be signed by the
Chairman of the meeting. The Secretary shall per-
form such other duties as may be required by an
Executive Officer or by the Board of Directors or
Committee thereof. The Secretary shall also perform
and discharge the usual functions of corporate
secretary and shall affix and attest the corporate
seal. Any officer of the Bank shall also be vested
with the authority to affix and attest the corporate
seal.
SECTION 4.11: EXERCISE OF AUTHORITY OF CHIEF EXECUTIVE OFFICER BY
OTHER EXECUTIVE OFFICERS
In case of the disqualification, death, resignation,
or removal of the Chief Executive Officer, and until
the Board of Directors has filled the vacancy, Vice
Chairmen in their order of authority, shall act as
such Chief Executive Officer and with his full au-
thority. In case of the absence, disqualification,
death, resignation or removal of all the Vice
Chairmen, the ordinary powers of the Chief Executive
Officer shall be exercised and his duties discharged
by an officer designated by the Board or the
Executive Committee until the Board has filled the
vacancy, but any extraordinary powers of the Chief
Executive Officer shall be exercised by such desig-
nated officer only when authorized by the Board of
Directors or the Executive Committee.
Page: 7
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 4.12: SPECIFIC POWERS OF CERTAIN OFFICERS
Any Executive Officer, any Vice President, any
Assistant Vice President, or other officer, or any
of them, and such other person or persons as may be
authorized by the Board of Directors or by any
committee of the Board with authority in the pre-
mises, or by any of the Executive Officers, shall
have the power to receipt for all moneys due or pay-
able to the Bank from any source whatever, and to
sign and endorse checks, drafts, warrants, and other
choices in action in the name of the Bank and in its
behalf.
The Chief Executive Officer and the Vice Chairman
(and, if and to the extent authorized by one (1) of
them, any Executive Officer, any other officer, or
any employee) shall severally have the right and
power to make loans (subject to limitations which
may be imposed from time to time by any of them).
Such officers of the Bank as may be authorized by
the Board of Directors or pursuant to a policy
adopted by the Board of Directors shall severally
have the right and authority to purchase investment
securities permitted by law for and on account of
the Bank and the right and power to sell and dispose
of any stocks, bonds, debentures or any other
securities of any kind held or owned by the Bank,
and they or any of them shall be and are hereby
authorized to make any and all necessary and proper
transfers of such ownership in any and all cases
where sales thereof are made.
SECTION 4.13: DUAL OFFICES
Any two or more offices of this Bank may, except
where prohibited by law, be held by the same indi-
vidual. In cases where an individual holds more
than one office, that person shall have the author-
ity of all offices so held and shall occupy the
"order of authority" provided in these by-laws for
the more senior of the offices held.
Page: 8
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-4
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article IV - Officers and
Employees
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 4.14: BONDS OF OFFICERS AND EMPLOYEES
The Board of Directors shall from time to time
designate the officers and employees who shall be
required to give bond and fix the amounts thereof.
Page: 9
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-5
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article V - Stock and Stock
Certificates
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 5.1: TRANSFERS
Transfer of stock in this Bank can only be
made in writing upon the transfer books of
the Bank by the Secretary upon production of
a certificate or certificates of stock with
transfer and assignment endorsed thereon by
the person or persons in whose name the
certificate was issued, his/her personal
representative or duly authorized attorney in
fact, following such procedures as are
commonly in use by stock transfer agents and
as may be required by applicable Federal and
State law. The old certificate or
certificates must be surrendered and canceled
before the new certificate is issued or
delivered.
SECTION 5.2: STOCK CERTIFICATES
Certificates of stock of this Bank shall be
signed by or in the name of any of the
Executive Officers (other than the Executive
Vice Presidents), manually or by facsimile,
engraved or printed signature, shall also be
manually signed by the Secretary, and shall
be sealed with the seal of the Bank or shall
bear a facsimile of such seal. Where blank
certificates are in supply bearing the
engraved or printed signature of a former
officer or officers, the Board or Executive
Committee may adopt and authorize the use of
the same notwithstanding that such person may
have ceased to be such officer at the time
when the certificate shall be actually
issued.
SECTION 5.3: LOST OR DESTROYED CERTIFICATES
In case of loss or destruction of any
certificate of stock, the holder or owner
thereof shall give notice thereof to the
division or department of the Bank then
handling transfers of stock of the Bank, and
if such holder or owner shall desire the
issue of a new certificate in place of the
one lost or destroyed, he/she shall make
affidavit of such loss or
Page: 1
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-5
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article V - Stock and Stock
Certificates
Date: January, 1994
- -------------------------------------------------------------------------------
SECTION 5.3 destruction and deliver the same to the
(Cont...): division or department of the Bank then
handling transfers of stock of the Bank, and
accompany the same with a bond, with security
satisfactory to this Bank, to indemnify and
save harmless this Bank against any loss,
cost, or damage, in case the certificate
reported lost or destroyed should thereafter
be presented to this Bank, or arising out of
the issue of such new certificate.
Page: 2
<PAGE>
AMSOUTH
- -------------------------------------------------------------------------------
AAB 200-6
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VI - Corporate Seal
Date: May, 1990
- -------------------------------------------------------------------------------
The common seal of this Bank shall be a
circular die with the words "AmSouth Bank,
National Association."
Page: 1
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-7
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VII - Miscellaneous
Provisions
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 7.1: FISCAL YEAR
The fiscal year of the Bank shall be the calendar
year.
SECTION 7.2: CONVEYANCES OF REAL ESTATE
All conveyances of real estate where the sales
price is in such amount as may be fixed from time
to time by resolution of the Board of Directors or
Executive Committee, other than conveyances by the
Bank in a fiduciary capacity, shall be authorized
by the Board of Directors or Executive Committee.
All other conveyances of real estate shall be made
in accordance with policies adopted from time to
time by the Management Committees of AmSouth
Bancorporation. All conveyances of real estate
shall be executed in the name of the Bank by any
Executive Officer, or any Vice President and
attested by the Secretary, or any Assistant Vice
President or other officer of the Bank who is
severally authorized to affix the corporate seal
of the Bank thereto.
SECTION 7.3: BANKING HOURS
The main office and the branches of this Bank
shall be open for business on such days and during
such hours as shall be determined from time to
time by any of the Executive Officers of the Bank,
unless one of said days falls on one of the
following holidays: New Year's Day, Memorial Day,
the Fourth of July, Labor Day, Thanksgiving Day,
and Christmas Day, or on such other days as may be
authorized by law or by regulation of governmental
authorities and approval by one (1) of the three
(3) Executive Officers highest in order of
authority.
For the purpose of allowing time to process items,
prove balances, and make the necessary entries on
the Bank's books to determine its position for the
Page: 1
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-7
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VII - Miscellaneous
Provisions
Date: January, 1994
- --------------------------------------------------------------------------------
SECTION 7.3 day, 2:00 p.m. is hereby fixed as a cut-off hour
(Cont...): for the handling of money and items and the making
of entries on the books of the Bank. Any item or
deposit of money received on any day after such
cut-off hour or after the close of the banking day
shall be treated as received by the Bank at the
opening of the next banking day.
All hours mentioned on this and the other sections
of these by-laws shall be deemed to refer to
Central Standard Time or Central Daylight Time,
whichever may be applicable at the time.
Page: 2
<PAGE>
AMSOUTH
- --------------------------------------------------------------------------------
AAB 200-7
ARTICLES OF ASSOCIATION Section: BY-LAWS
AND BY-LAWS MANUAL (AMSOUTH BANK N.A.)
Subject: Article VIII - Amendments
Provisions
Date: May, 1990
- --------------------------------------------------------------------------------
These By-Laws may be changed or amended by the
vote of a majority of the entire Board of
Directors at any meeting, without previous notice.
Page: 1
<PAGE>
EXHIBIT 5
NONE
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, in connection with the proposed issue of Subordinated Debt Securities
of Protective Life Corporation., we hereby consent that reports of examinations
by Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefor.
Dated March 25, 1994
AMSOUTH BANK, NATIONAL ASSOCIATION
BY T. FRANKLIN CALEY
------------------------
T. Franklin Caley
Vice President and
Corporate Trust Officer
<PAGE>
EXHIBIT 7
<PAGE>
Call Date: 12/31/93 ST-BK: 01-0320 FFIEC 031
Page RC-1
Legal Title of Bank: AmSouth Bank N.A.
Address: P.O. Box 11007
City, State Zip: Birmingham, AL 35202
FDIC Certificate No.: 0 2 7 8 2
---------
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS //////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////////
a. Noninterest-bearing balances and currency and coin(1). . . . . . . . . . . . . . . . . . 0081 475,216 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0071 0 1.b.
2. Securities (from Schedule RC-B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0390 1,675,826 2.
3. Federal funds sold and securities purchased under agreements to resell in domestic offices //////////////////
of the bank and of its Edge and Agreement subsidiaries, and in IBFs: //////////////////
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276 32,250 3.a.
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . . . . . . . . 0277 93,361 3.b.
4. Loans and lease financing receivables: //////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 6,027,867 ////////////////// 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . . . RCFD 3123 76,638 ////////////////// 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . RCFD 3128 0 ////////////////// 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . . . . . . . . . 2125 5,951,229 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2146 94,844 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . . . . . . . . . . . . 2145 135,657 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . 2150 10,163 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M). . . 2130 13,418 8.
9. Customers' liability to this bank on acceptances outstanding. . . . . . . . . . . . . . . . . 2155 6,263 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2143 52,972 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2160 260,683 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . . . . . . . . . . . . 2170 8,801,882 12.
<FN>
- -------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
11
<PAGE>
Call Date: 12/31/93 ST-BK: 01-0320 FFIEC 031
Page RC-2
Legal Title of Bank: AmSouth Bank N.A.
Address: P.O. Box 11007
City, State Zip: Birmingham, AL 35202
FDIC Certificate No.: 0 2 7 8 2
---------
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands //////// Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, Part I). . . RCON 2200 6,521,107 13.a.
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . RCON 6631 1,516,492 ////////////////////// 13.a.(1)
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . RCON 6636 5,004,615 ////////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, //////////////////////
part II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFN 2200 11,194 13.b.
(1) Noninterest bearing. . . . . . . . . . . . . . . . . . . RCFN 6631 0 ////////////////////// 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . . RCFN 6636 11,194 ////////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase domestic offices //////////////////////
of the bank and of its Edge and Agreements subsidiaries, and in IBFs: //////////////////////
a. Federal funds purchased. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 0278 381,443 14.a.
b. Securities sold under agreements to repurchase . . . . . . . . . . . . . . . . . . . . RCFD 0279 445,956 14.b.
15. Demand notes issued to the U.S. Treasury. . . . . . . . . . . . . . . . . . . . . . . . . . RCON 2840 300,000 15.
16. Other borrowed money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2850 226,263 16.
17. Mortgage indebtedness and obligations under capitalized losses. . . . . . . . . . . . . . . RCFD 2910 180 17.
18. Bank's liability on acceptances executed and outstanding. . . . . . . . . . . . . . . . . . RCFD 2920 6,263 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3200 0 19.
20. Other liabilities (from Schedule RC-G). . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2930 173,632 20.
21. Total liabilities (sum of items 13 through 20). . . . . . . . . . . . . . . . . . . . . . . RCFD 2948 8,066,038 21.
//////////////////////
22. Limited-life preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL //////////////////////
23. Perpetual preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . RCFD 3838 0 23.
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 16,050 24.
25. Surplus (exclude all surplus related to preferred stock). . . . . . . . . . . . . . . . . . RCFD 3839 267,562 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3632 452,232 26.a.
b. LESS: Net unrealized loss on marketable equity securities. . . . . . . . . . . . . . . RCFD 0297 0 26.b.
27. Cumulative foreign currency translation adjustments . . . . . . . . . . . . . . . . . . . . RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) . . . . . . . . . . . . . . . . . . . . . RCFD 3210 735,844 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22 //////////////////////
and 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3300 8,801,882 29.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -------------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
12
