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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of earliest event
reported: June 2, 1994
PROTECTIVE LIFE CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-9924 95-2492236
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(State of (Commission File Number) (IRS Employer
Incorporation) Identification No.)
2801 Highway 280 South, Birmingham, Alabama 35223
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(Address of principal executive offices) (Zip Code)
(215) 879-9230
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(Registrant's telephone number)
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Item 7. EXHIBITS. The documents listed below are filed as Exhibits with
reference to the Registration Statement on Form S-3 (Registration No.
33-52831) of Protective Life Corporation ("Protective Life") and PLC Capital
L.L.C. (the "Company"). The Registration Statement and the Prospectus
Supplement, dated June 2, 1994, to the Prospectus, dated June 2, 1994, relate
to the offering of the Company's 9% Cumulative Monthly Income
Preferred Securities, Series A (the "Series A Preferred Securities") as
guaranteed by Protective Life pursuant to the Guarantee Agreement dated as of
June 9, 1994, between Protective Life and the Company, a form of which has
been previously filed as an Exhibit to the Registration Statement.
1(c) Underwriting Agreement, dated June 2,
1994 among the Company, Protective Life
and the Representatives of the several
Underwriters named in the respective
Pricing Agreements described therein.
4(e) Action, dated as of June 9, 1994,
establishing the Series A Preferred
Securities.
4(f) Specimen Series A Preferred Security
Certificate.
4(h) Subordinated Indenture, dated as of June
1, 1994, from Protective Life to AmSouth
Bank N.A., as Trustee.
4(h)(1) Supplemental Indenture No. 1, dated as
of June 9, 1994, from Protective Life to
AmSouth Bank N.A., as Trustee.
4(k) Specimen Series A Subordinated
Debenture.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Protective Life Corporation has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
PROTECTIVE LIFE CORPORATION
By /s/ Jerry W. DeFoor
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Jerry W. DeFoor
President and Chief
Executive Officer
Dated: June 17, 1994
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EXHIBIT INDEX
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EXHIBIT PAGE
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1(c) Underwriting Agreement, dated June 2,
1994 among the Company, Protective Life
and the Representatives of the several
Underwriters named in the respective
Pricing Agreements described therein.
4(e) Action, dated as of June 9, 1994,
establishing the Series A Preferred
Securities.
4(f) Specimen Series A Preferred Security
Certificate.
4(h) Subordinated Indenture, dated as of June 1,
1994, from Protective Life to AmSouth
Bank N.A., as Trustee.
4(h)(1) Supplemental Indenture No. 1, dated as
of June 9, 1994, from Protective Life to
AmSouth Bank N.A., as Trustee.
4(k) Specimen Series A Subordinated
Debenture.
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PLC CAPITAL L.L.C.
CUMULATIVE MONTHLY
INCOME PREFERRED SECURITIES
GUARANTEED BY
PROTECTIVE LIFE CORPORATION
__________
UNDERWRITING AGREEMENT
June 2, 1994
To the Representatives of the several
Underwriters to be 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 relating to each such series in
substantially the form filed as an exhibit to the registration statement
described herein (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
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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 "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 Designated Securities, for whom the firms designated
as representatives of the Underwriters of such Designated Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Preferred Securities or as an obligation of any of the Underwriters to
purchase any of the Preferred Securities. The obligation of the Company to issue
and sell any of the Preferred Securities and the obligation of any of the
Underwriters to purchase any of the Preferred 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; and no stop order suspending the effectiveness of
such registration
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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 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
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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;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein (i) in the case of the Registration Statement,
not misleading and (ii) in the case of the Prospectus, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company 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. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been (i) any change in the limited liability
company interests or long-term debt of the Company or any material change
in the capital stock or any increase in long-term debt of the Guarantor or
any of its subsidiaries in excess of $9 million, (ii) any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company or
the Guarantor and its subsidiaries taken as a whole or (iii) any reduction
in the statutory capital or surplus of the Guarantor's subsidiaries
engaged in the business of insurance (each an "Insurance Subsidiary," and
collectively, the "Insurance Subsidiaries") taken as a whole, in excess of
$9 million, in each case otherwise than as set forth or contemplated in
the Prospectus;
(e) The Company has been duly 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 has been duly qualified as a foreign corporation for the
transaction of business under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction;
(f) Each of the Guarantor and Protective Life Insurance Company
("Protective Life Insurance") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
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of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is subject
to no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(g) Protective Life Insurance is duly organized and licensed as an
insurance company in its state of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required
to be so licensed or authorized to conduct its business as described in
the Prospectus, except for any such jurisdictions in which the failure to
be so licensed or authorized would not have a material adverse effect on
the business, financial condition or results of operations of the
Guarantor and its subsidiaries, considered as a whole; and, except as
otherwise specifically described in the Prospectus, neither the Guarantor
nor Protective Life Insurance has received any notification from any
insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, license, certificate, permit,
registration or qualification from such insurance regulatory authority is
needed to be obtained by any of the Guarantor or Protective Life Insurance
in any case where it could be reasonably expected that the failure to
obtain any such additional authorization, approval, order, consent,
license, certificate, permit, registration or qualification would have a
material adverse effect on the business, financial position or results of
operations of the Guarantor and its subsidiaries, considered as a whole;
(h) The Guarantor has an authorized capitalization as set forth in
the Prospectus, as amended or supplemented; 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 in all material
respects to the descriptions thereof contained in the Prospectus; and all
of the issued shares of capital stock of Protective Life Insurance have
been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims;
(i) The Amended and Restated 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 (regardless
of whether considered in a proceeding at law or in equity); the L.L.C.
Agreement will conform in all material respects to the descriptions
thereof in the Prospectus as amended or supplemented with respect to the
Designated Securities;
(j) 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 (regardless of whether
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considered in a proceeding at law or in equity); the Guarantee will
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented with respect to the Designated
Securities;
(k) The Debentures 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 (regardless of whether considered in a proceeding at law
or in equity); 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 (regardless of whether considered in a
proceeding at law or in equity); and the Indenture conforms, and the
Debentures will conform in all material respects to the descriptions
thereof contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
(l) The Company has an authorized capitalization as set forth in the
Prospectus, as amended or supplemented; all of the issued Common
Securities of the Company have been duly authorized and validly issued and
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;
(m) The Securities have been duly 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 against payment
therefor pursuant to this Agreement and the Pricing Agreement with respect
to such Designated Securities 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 preferred 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 obligations to make payments provided for in the L.L.C. Agreement
and 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 in all material
respects to the description thereof contained in the Registration
Statement and the Designated Securities will conform in all material
respects to the description thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(n) 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
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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 (1) 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 Protective Life Insurance is a party or by which the Company,
the Guarantor or Protective Life Insurance is bound or to which any of the
property or assets of the Company, the Guarantor or Protective Life
Insurance is subject, except, in all such cases, for such conflicts,
breaches, violations or defaults as would not have a material adverse
effect on the financial condition or results of operations of the
Guarantor and Protective Life Insurance taken as a whole or would not
affect the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities, (2) result in any violation
(A) 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 Protective Life Insurance or (B) any statute or any order,
rule or regulation of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company, the
Guarantor or any of the Guarantor's subsidiaries or any of their
properties; provided, however that in the case of clause (B) of this
paragraph 2(n), this representation and warranty shall not extend to such
violations as would not have a material adverse effect on the financial
condition or results of operations of the Guarantor and Protective Life
Insurance taken as a whole or would not affect the validity of or
otherwise have a material adverse effect on the issuance or sale of the
Designated Securities; provided further, that insofar as this
representation and warranty relates to the performance by the Company and
the Guarantor of each of their respective obligations under this
Agreement, the Pricing Agreement relating to the Designated Securities,
the Indenture, the Debentures and the Guarantee, such performance is
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company, the
Guarantor or Protective Life Insurance is required for the issue and sale
of the Securities or the consummation by the Company or the Guarantor 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 and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state securities
or Blue Sky laws or insurance securities laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters
and except those which, if not obtained, will not have a material adverse
effect on the financial condition or results of operations of the
Guarantor and Protective Life Insurance taken as a whole or would not
affect the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities;
(o) Other than as set forth or contemplated 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
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Guarantor or any of its subsidiaries is the subject, which could
reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the consolidated financial position,
stockholders' equity (if applicable), total surplus (if applicable) or
results of operations of the Company, the Guarantor and its subsidiaries
taken as a whole; and, to the best of the Guarantor's and the Company's
knowledge, as the case may be, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
(p) 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
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 and the Guarantor, 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 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. Unless otherwise specified in the applicable Pricing Agreement, global
certificates for the Firm Securities and Optional Securities to be purchased by
each Underwriter pursuant to such Pricing Agreement, registered in the name
"Cede & Co.," shall be delivered by or on behalf of the Company to The
Depository Trust Company, which shall release such Firm Securities and Optional
Securities to the accounts of 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
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order of the Company or, if so requested by the Company, by wire transfer to a
bank account specified by the Company and described in Schedule II to such
Pricing Agreement, in the funds specified in such Pricing Agreement, (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 (which approval shall not be unreasonably withheld) and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following
the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such other time as may
be required by Rule 424(b); to make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Securities and
prior to any Time of Delivery for such Securities which shall be
reasonably disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after 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 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
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Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event
of the issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such United States
jurisdictions as the Representatives may reasonably request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of such Securities, provided that in connection therewith
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 and provided further that in connection therewith the
Company and the Guarantor shall not be required to qualify such Designated
Securities for offering and sale under the securities laws of any such
jurisdiction for a period in excess of nine months after the initial time
of issue of the Prospectus as amended or supplemented relating to such
Designated Securities;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably 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, provided, however, that in case any Underwriter is required
under the Act to deliver a prospectus in connection with the offering or
sale of the Designated Securities at any time more than nine months after
the date of the Pricing Agreement relating to the Designated Securities,
the costs of such preparation and furnishing of such amended or
supplemented Prospectus shall be borne by the Underwriters of such
Designated Securities;
(d) 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 Guarantor 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);
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(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 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 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 use its best efforts to list, subject to notice of issuance,
the Designated Securities on the New York Stock Exchange; and
(g) To use its best efforts to list the Debentures, upon 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, subject to the proviso of Section
5(c), the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
producing and printing or duplicating any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required 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
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<PAGE>
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) Deborah J. Long, Esq., Senior Vice President and General Counsel
of the Guarantor, or any successor having substantially equivalent
responsibilities with the Guarantor, shall have furnished to the
Representatives such counsel's written opinion, dated each Time of
Delivery for such Designated Securities, respectively, in form and
substance satisfactory to the Representatives, to the effect that:
(i) Each of the Guarantor and Protective Life Insurance
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus as amended or supplemented, and has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any
such jurisdiction;
(ii) The 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 in all material respects to the description thereof in the
Prospectus as amended or supplemented; and all of the issued shares
of capital stock of Protective Life Insurance have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are owned
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<PAGE>
directly or indirectly by the Guarantor, free and clear of any
perfected security interests and, to such counsel's best knowledge,
any other security interests, claims, liens or encumbrances;
(iii) The Company has an authorized capitalization as set
forth in the Prospectus, as amended or supplemented; all of the
issued Common Securities of the Company have been duly authorized
and validly issued and are owned directly or indirectly by the
Guarantor, free and clear of any perfected security interests and,
to such counsel's best knowledge, any other security interests,
claims, liens or encumbrances; and the Company is not a party to or
otherwise bound by any agreement other than those described in the
Prospectus;
(iv) 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, delivery and performance by the Guarantor of the
Indenture, the Debentures and the Guarantee and the performance by
the Guarantor and the Company of their respective obligations
hereunder and thereunder and the consummation of the transactions
herein and therein contemplated will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Guarantor or Protective Life Insurance is a
party or by which the Guarantor or Protective Life Insurance is
bound or to which any of the property or assets of the Guarantor or
Protective Life Insurance is subject, except, in all such cases, for
such conflicts, breaches, violations or defaults as would not have a
material adverse effect on the financial condition or results of
operations of the Guarantor and Protective Life Insurance taken as a
whole or would not affect the validity of or otherwise have a
material adverse effect on the issuance or sale of the Designated
Securities, or (ii) result in any violation of the provisions of (A)
the Certificate of Incorporation or By-Laws of the Guarantor or
Protective Life Insurance or (B) any statute known to such counsel
to be applicable to the Company, the Guarantor or Protective Life
Insurance or any of their respective properties or any order, rule
or regulation known to such counsel of any court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Guarantor or Protective Life Insurance or any
of their respective properties, except, with respect to clause (B)
of this paragraph (iv), such violations as would not have a material
adverse effect on the financial condition or results of operations
of the Guarantor and Protective Life Insurance taken as a whole or
would not affect the validity of or otherwise have a material
adverse effect on the issuance or sale of the Designated Securities;
and except that for purposes of this paragraph (iv) such counsel
need not express any opinion as to any federal or state securities
laws or Blue Sky or insurance securities laws; provided further,
that insofar as performance by the Guarantor of its obligations
under the Indenture, the Debentures, the Guarantee Agreement, this
Agreement and the Pricing Agreement relating to the Designated
Securities is concerned, such counsel need not express any opinion
as to bankruptcy, insolvency,
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<PAGE>
reorganization, moratorium and similar laws relating to or affecting
creditors' rights generally and as to general equity principles;
(v) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Guarantor
or any of its subsidiaries is required for the issue and sale of the
Designated Securities being delivered at such Time of Delivery or
the consummation by the Company or the Guarantor 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
and such consents, approvals, authorizations, orders, registrations
or qualifications as may be required under state securities or Blue
Sky laws or insurance securities laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters, and except those which, if not obtained, would not
have a material adverse effect on the financial condition or results
of operations of the Guarantor and its subsidiaries taken as a
whole;
(vi) 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 of a character required under the Federal securities
laws to be disclosed in the Registration Statement or Prospectus
which are not adequately disclosed in the Registration Statement or
Prospectus; and
(vii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related notes, the financial statement schedules and
other financial and statistical data included therein, as to which
such counsel need express no opinion), when they become effective or
were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder.
In rendering the opinion required by subsection (c) of this Section,
(i) such counsel may state that she is admitted to the Bar of the State of
Alabama only, and (ii) such counsel may rely (A) as to any matter to which
you consent (which consent shall not be unreasonably withheld), to the
extent specified in such opinion, upon the opinions (copies of which shall
have been provided to the Representatives) of other counsel in good
standing whom such counsel believes to be reliable, provided that such
counsel shall state that she believes that both she and the
Representatives are justified in relying on such opinions and (B) as to
matters of fact, upon certificates of officers and representatives of the
Guarantor and of public officials (copies of which shall have been
provided to the Representatives), provided that such counsel shall state
that she believes that both she and the Representatives are justified in
relying upon such certificates.
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Such counsel shall also have stated that, while she has not herself
checked the accuracy or completeness of or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or
the Prospectus, in the course of her review and discussion of the contents
of the Registration Statement and Prospectus and any amendment or
supplement thereto with certain officers and employees of the Guarantor
and its independent accountants, but without independent check or
verification, no facts have come to her attention that would cause her to
believe that the Registration Statement or the Prospectus, as amended or
supplemented, as of the date of the Pricing Agreement with respect to the
Designated Securities and the Time of Delivery for such Designated
Securities (other than the financial statements and related notes, the
financial statement schedules, other financial and statistical data
included therein and the Statement of Eligibility of the Trustee on Form
T-1 under the Trust Indenture Act as to which she need express no opinion)
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) Debevoise & Plimpton, or other counsel for the Company and the
Guarantor satisfactory to the Representatives, shall have furnished to the
Representatives their written opinion, dated each Time of Delivery for
such Designated Securities, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly formed and is validly
existing in good standing as a limited liability company under the
laws of the State of Delaware; under the L.L.C. Agreement and the
Delaware Limited Liability Company Act (6 Del. C. Section 18-101, ET
SEQ.), the Company has all necessary limited liability company
power and authority to own its properties and conduct its business,
all as described in the Prospectus;
(ii) The Common Securities of the Company issued to the
Guarantor and Protective LLC Holding, Inc., a Delaware corporation
and wholly-owned subsidiary of the Guarantor ("Protective Holding"),
have been duly authorized and are validly issued;
(iii) The Designated Securities being delivered at such Time
of Delivery have been duly authorized and validly issued and,
subject to the qualifications set forth herein, are fully paid and
non-assessable preferred limited liability company interests in the
Company, as to which the Preferred Securityholders will have no
liability solely by reason of being Preferred Securityholders in
excess of their obligations to make payments expressly provided for
in the L.L.C. Agreement and their share of the Company's assets and
undistributed profits (subject to the obligation of a Preferred
Securityholder to repay any funds wrongfully distributed to it); and
the Securities conform in all material respects to the description
thereof contained in the Registration Statement and the Designated
Securities conform in all material respects to the description
thereof contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
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(iv) The L.L.C. Agreement constitutes a valid and legally
binding agreement of the Guarantor and Protective Holding
enforceable against the Guarantor and Protective Holding by the
Preferred Securityholders in accordance with its terms, subject to
(A) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors'
rights generally (B) general equity principles (regardless of
whether considered in a proceeding at law or in equity) and (3)
applicable laws relating to fiduciary duties; and the L.L.C.
Agreement conforms in all material respects to the description
thereof in the Prospectus, as amended or supplemented with respect
to such Designated Securities;
(v) The Guarantee has been duly authorized, executed and
delivered by the Guarantor and constitutes a valid and legally
binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally
and to general equity principles (regardless of whether considered
in a proceeding at law or in equity); and the Guarantee conforms in
all material respects to the description thereof in the Prospectus
as amended or supplemented with respect to such Designated
Securities;
(vi) The Debentures have been duly authorized, issued,
executed, authenticated and delivered and constitute valid and
legally binding obligations of the Guarantor, enforceable against
the Guarantor in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally
and to general equity principles (regardless of whether considered
in a proceeding at law or in equity); and the Debentures conform in
all material respects to the description thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Securities;
(vii) The Indenture has been duly authorized, executed and
delivered by the Guarantor and, assuming due authorization,
execution and delivery by the Trustee, the Indenture constitutes a
valid and legally binding instrument enforceable against the
Guarantor in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally
and to general equity principles (regardless of whether considered
in a proceeding at law or in equity); the Indenture has been duly
qualified under the Trust Indenture Act; and the Indenture conforms
in all material respects to the description thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Securities;
(viii) 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;
(ix) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the Company
with
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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 violation of the provisions of the Certificate of
Formation of the Company or the L.L.C. Agreement;
(x) 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 notes, the
financial statement schedules and other financial and statistical
data included therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules
and regulation thereunder;
(xi) 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;
(xii) 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, fairly summarize the
material provisions of such documents or U.S. tax laws; and
(xiii) Such counsel has reviewed its opinion 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 the foregoing opinion, Debevoise & Plimpton may state
that they express no opinion as to the laws of any jurisdiction other than
the Federal laws of the United States, the laws of the State of New York
and each of the General Corporation Law and the Limited Liability Company
Act of the State of Delaware. In rendering the foregoing opinion,
Debevoise & Plimpton may also state that they have relied, as to matters
of Delaware law, on the opinion of Richards, Layton & Finger, P.A. and the
opinion of Debevoise & Plimpton may incorporate all of the assumptions and
qualifications set forth in the opinion of Richards, Layton & Finger, P.A.
Debevoise & Plimpton shall also have stated that, while they have
not themselves checked the accuracy or completeness of or otherwise
verified, and are not passing upon and assume no responsibility for the
accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectus, except to the limited extent stated in
paragraphs (iii), (iv), (v), (vi), (vii) and (xii) above, in the course of
their review and discussion of the contents of the Registration Statement
and the Prospectus with certain officers and employees of the Guarantor
and its
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independent accountants, but without independent check or verification, no
facts have come to the attention of such counsel that would cause such
counsel to believe that the Registration Statement or the Prospectus, as
amended or supplemented, as of the date of the Pricing Agreement with
respect to the Designated Securities and the Time of Delivery for such
Designated Securities (other than the financial statements and related
notes, the financial statement schedules and other financial and
statistical data included therein and except for the Statement of
Eligibility of the Trustee on Form T-1 under the Trust Indenture Act, as
to which such counsel need express no opinion) contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) 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.
(f) 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 date of such
Pricing Agreement, and a letter dated such Time of Delivery, respectively,
to the effect set forth in Annex II hereto, and with respect to such
letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(g) 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 limited liability company interests or long-term debt of the
Company or any change in the capital stock or any increase in the
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 (if
applicable), 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 above, is
in the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in any rating
of the Guarantor or Protective Life Insurance or the rating accorded the
Preferred Securities or the
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Guarantor's debt securities or preferred stock (including the Guarantee or
any other back-up undertakings in respect of the Preferred Securities) by
Moody's Investors Service, Inc., Standard & Poor's Corporation, A.M. Best
Company, Inc. or Duff & Phelps Inc. and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, any such rating;
(i) 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;
(j) The Designated Securities shall have been duly listed, subject
to notice of issuance, on the New York Stock Exchange; and
(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 (g) of this
Section and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company and the Guarantor will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, as amended or supplemented, or any other such prospectus, in light
of the circumstances in which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that neither the Company
nor the Guarantor 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 the Guarantor by any Underwriter of Designated Securities through the
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<PAGE>
Representatives expressly for use therein and provided, further, that neither
the Company nor the Guarantor shall be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus or any preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact such
Underwriter sold Designated Securities to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) in any case where such delivery is required by the
Act if such Underwriter failed to make reasonable efforts generally consistent
with the then prevailing industry practice to effect such delivery and the
Company or the Guarantor has previously furnished copies thereof in sufficient
quantities to such Underwriter (or to the Representatives) and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus or any
preliminary prospectus supplement which was corrected in the Prospectus
(excluding documents incorporated by reference) (or the Prospectus as amended or
supplemented (excluding documents incorporated by reference)).
(b) Each Underwriter will indemnify and hold harmless the Company and the
Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
as amended or supplemented, or any such prospectus, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or the Guarantor by
such Underwriter through the Representatives expressly for use therein; and will
reimburse the Company or the Guarantor for any legal or other expenses
reasonably incurred by the Company or the Guarantor 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 reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
20
<PAGE>
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. In no event, shall any indemnifying
party be liable for the fees and expenses of more than one counsel (in addition
to local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor 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 the Guarantor
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 the Guarantor 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 the Guarantor
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 the Guarantor 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 and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of
21
<PAGE>
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 the Guarantor under this Section 8
shall be joint and several and shall be in addition to any liability which the
Company and the Guarantor 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 or the Guarantor and to
each person, if any, who controls the Company or the Guarantor 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
reasonably 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 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.
22
<PAGE>
(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 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 reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company 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)
23
<PAGE>
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.
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: /S/ DRAYTON NABERS, JR.
---------------------------------------
Name: Drayton Nabers, Jr.
Title: President and Chief Executive
Officer
PROTECTIVE LIFE CORPORATION
By: /S/ DRAYTON NABERS, JR.
-----------------------------------
Name: Drayton Nabers, Jr.
Title: President and Chief Executive
Officer
24
<PAGE>
ANNEX I
PRICING AGREEMENT
[Goldman, Sachs & Co., or other Lead Representative]
[Names of Co-Representatives, if any]
As Representatives of the several Underwriters
named in Schedule I hereto,
[c/o Goldman, Sachs & Co.,]
85 Broad Street,
New York, New York 10004
............. 19..
Dear Sirs:
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.
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
I-1
<PAGE>
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:
Accepted as of the date hereof:
[Goldman, Sachs & Co. or other
Lead Representative]
[Co-Representatives, if any]
By:__________________________________
[(Goldman, Sachs & Co.)]
[Name(s) of Co-Representative
Corporation(s)]
By: ____________________________
Name:
Title:
_________________________________
[Name(s) of Co-Representative
Partnership(s)]
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
Maximum Number
Number of of Optional
Firm Securities Securities Which
Underwriter To Be Purchased May Be Purchased
----------- --------------- ----------------
[Goldman, Sachs & Co. or other Lead
Representative].................
[Names of Co-Representative(s)]....
[Names of other Underwriters]......
--------------- ----------------
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
UNDERWRITERS' COMPENSATION:
$....... per security
[(except that such compensation shall be $....... per security sold to
[certain institutions])]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[[New York] Clearing House Funds]
[Immediately Available Funds]
LIQUIDATION PREFERENCE:
$....... per security
DIVIDEND RATE:
.....% per annum per security
DIVIDEND PAYMENT DATES:
[The last day of each calendar month, commencing .........., 19..]
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<PAGE>
DIVIDEND RIGHTS:
As described in the draft prospectus supplement attached hereto.
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:
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:
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 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(f) 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
No. 71) as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference in the 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 or per share amounts of income before extraordinary items or
of net income, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in all instances for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the 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>
Exhibit 4(e)
ACTION
TERMS OF THE 9% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES, SERIES A
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:
I. That pursuant to the terms of the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of May 20, 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 one or more series of
preferred limited liability interests in the Company (the "Preferred
Securities"); and
II. That by this duly adopted Action, the Class A Interest Holder,
on behalf of the Company, pursuant to authority granted to it in the Agreement,
hereby creates a new series of Preferred Securities and hereby fixes the rights,
powers and duties 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. NUMBER AND DESIGNATION. 2,200,000 Preferred Securities of the
Company, liquidation preference $25.00 per Preferred Security, are hereby
constituted as a series of preferred limited liability company interests,
designated as "9% Cumulative Monthly Income Preferred Securities, Series A"
(hereinafter called the "Series A Preferred Securities").
2. RANKING. The Series A 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. So long as
any Series A Preferred Securities are outstanding, the Company will not issue
any limited liability company interests ranking, as to periodic distribution
rights or rights upon dissolution, liquidation
<PAGE>
or winding up, senior to the Series A Preferred Securities.
3. PERIODIC DISTRIBUTIONS (DIVIDENDS). (a) The Holders of the
Series A Preferred Securities shall be entitled to receive per annum, when, as
and if declared by the Company out of funds held by the Company and legally
available therefor, cumulative cash periodic distributions ("dividends") at the
annual rate of 9% of the sum of (I) the stated liquidation preference of
$25.00 per Series A Preferred Security and (II) if and for so long as any
dividend on the Series A Preferred Securities is not paid in full for any
monthly dividend period on the payment date specified in this paragraph, the
aggregate accumulated and unpaid dividends per Series A Preferred Security, 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,
calculated 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 June 30, 1994. 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 A Preferred
Securities shall be cumulative from the date of original issue. 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 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 A 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 shall 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 payment. Dividends declared on the Series A Preferred
Securities will be payable to the Holders thereof as they appear on the Register
on the
2
<PAGE>
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 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 at any time
dividends on Series A Preferred 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 as specified in (a) above.
4. REDEMPTION. (a) MANDATORY REDEMPTION. Upon any repayment
or permitted prepayment of principal on the Subordinated Debentures issued in
connection with the issuance of the Series A Preferred Securities as
contemplated by Section 3.4 of the Agreement (the "Series A Subordinated
Debentures"), the proceeds from such repayment of principal on the Series A
Subordinated Debentures and related interest shall be applied to redeem the
Series A Preferred Securities for cash at $25.00 per Series A Preferred
Security, plus accumulated and unpaid dividends (whether or not declared) to the
redemption date (the "REDEMPTION PRICE"); PROVIDED that all or a portion of
the principal amount of Series A Subordinated Debentures repaid at maturity may
be reloaned to Protective, and not used for redemption, if such new loan is
evidenced by a series of Subordinated Debentures (the "NEW SUBORDINATED
DEBENTURES") and at the time of the issuance of the New Subordinated
Debentures, and as determined in the judgment 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 Subordinated Debentures, (III) Protective
has made all required monthly payments of interest on all Subordinated
Debentures 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
3
<PAGE>
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 at least equal to or greater than the
interest rate on the Series A Subordinated Debentures, (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 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 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 A 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 Subordinated Debentures will not be convertible
or exchangeable into any equity interest of or in Protective or any of its
Affiliates, (XI) such New Subordinated Debentures shall not pay any contingent
or other interest determined by reference to, or otherwise participate in, the
earnings or profits of Protective 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) the final maturity of such new loan is prior
to the 50th anniversary of the 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 to be
reloaned to Protective, the amount of such principal not reloaned shall be used
to effect a partial redemption of the Series A Preferred Securities; PROVIDED
that, if such a partial redemption would result in a delisting of the Series A
Preferred Securities, no amount of the principal may be so reloaned and the
Series A Preferred Securities shall be redeemed in whole. In the event that
fewer than all of the outstanding Series A Preferred Securities are to be
redeemed, the Series A Preferred Securities to be redeemed shall be selected in
accordance with paragraph 5 hereof.
4
<PAGE>
(b) OPTIONAL REDEMPTION. (i) The Series A Preferred Securities
are redeemable for cash, 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 June 30, 1999, 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 A Preferred Securities from the New York Stock
Exchange, the Company may only redeem the Series A Preferred Securities in
whole.
(ii) Notwithstanding subparagraph (i) above, on or after the date
of issuance of the Series A Preferred Securities, the Company may, at its
option, subject to the prior written consent of Protective, redeem the
Series A Preferred Securities in whole (but not in part), upon not less
than 30 nor more than 60 days' notice given within 180 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 Subordinated Debentures having, at
the time of exchange, (A) an aggregate principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred
Securities 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
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 June
2, 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, the Company may be considered an "investment company"
under the Investment Company Act of 1940, as amended (the "1940 Act");
PROVIDED that PLC Capital may not exchange the Series A Preferred
Securities for Series A Subordinated Debentures pursuant to the foregoing
unless it
5
<PAGE>
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.
(iii) Notwithstanding subparagraph (i) above, 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 180 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, the Company may redeem the
Series A Preferred Securities in whole (but not in part) in exchange for
Series A Subordinated Debentures having, at the time of the exchange,
(A) an aggregate principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities 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 Protective or the Company
shall 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 June 2, 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 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 (X)
Protective will be precluded from deducting the interest on the Series A
Subordinated Debentures for Federal income tax purposes, (Y) the
Company is subject to Federal income tax with respect to the interest
received on the Series A Subordinated Debentures or (Z) the Company is
subject to more than a de minimis amount of any other taxes, duties or
other governmental charges; PROVIDED, HOWEVER, that solely in the case
of the event described in clause (Z) above, the Company may not exchange
the
6
<PAGE>
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, the
Company shall have the right, upon not less than 30 nor more than 60 days'
notice given within 180 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 redeem the Series A Preferred Securities in whole
(but not in part) for cash at the Redemption Price if Protective shall
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 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.
(c) The Company may 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.
5. REDEMPTION PROCEDURE. (a) NOTICE OF REDEMPTION. Notice of
any redemption (a "Notice of Redemption") of the Series A Preferred Securities
will be given by the Company by mail to each Holder of Series A 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 A Preferred Securities. Each Notice of Redemption shall be addressed
to the Holder at the address of the Holder appearing in the Register. Each
Notice of Redemption shall state: (I) the redemption date; (II) the
Redemption Price;
7
<PAGE>
(III) if the Series A Preferred Securities are represented by Certificated
Preferred Securities and less than all such Outstanding Series A Preferred
Securities are to be redeemed, the identification of the particular Series A
Preferred Securities to be redeemed and, if the Series A Preferred Securities
are represented by a Global Preferred Security, the portion of the Global
Preferred Security to be redeemed; (IV) that on the redemption date the
Redemption Price will become payable with respect to each Series A Preferred
Security to be redeemed and that dividends thereon will cease to accumulate on
and after said date; and (V) the identity of the Paying Agent, if any, and the
place or places where each Series A Preferred Security is to be surrendered for
payment of the Redemption Price. 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) REDEMPTION OF LESS THAN ALL SERIES A PREFERRED SECURITIES.
In the event that the Series A Preferred Securities are represented by
Certificated Preferred Securities and fewer than all the Outstanding Series A
Preferred Securities are to be redeemed, the particular Series A Preferred
Securities to be redeemed will be selected by the Class A Interest Holder from
the Outstanding Series A Preferred Securities not previously called for
redemption, by such method as the Class A Interest Holder shall deem fair and
appropriate. If all Outstanding Series A Preferred Securities are represented
by a Global Preferred Security, the Class A Interest Holder may provide for the
selection for redemption of a portion of such Global Preferred Security. Any
Series A Preferred Security which is to be redeemed only in part shall be
surrendered with due endorsement by or a written instrument of transfer fully
executed by the Holder thereof (or his attorney duly authorized in writing) and
the Company shall prepare and deliver to such Holder, without service charge, a
new Series A Preferred Security or Securities in aggregate stated liquidation
preference equal to, and in exchange for the unredeemed portion of, the Series A
Preferred Security so surrendered.
(c) REDEMPTION FOR CASH. If the Company gives a Notice of
Redemption for cash at the Redemption Price in respect of Series A Preferred
Securities, and if, on or before the redemption date specified therein, all
funds necessary for such redemption shall have been either (I) set aside by
the Company, separate and apart from its other
8
<PAGE>
funds or (II) deposited by the Company with the Paying Agent (which shall
initially be AmSouth Bank N.A.), in each case in trust for the pro rata benefit
of the Holders of the Series A Preferred Securities called for redemption, so as
to be and continue to be available therefor, then, notwithstanding that any
certificate for Series A Preferred Securities so called for redemption shall not
have been surrendered for cancellation, all rights of Holders of such Series A
Preferred Securities so called for redemption will cease, except the right of
the Holders of such Series A Preferred Securities to receive the Redemption
Price, but without interest, and such Series A Preferred Securities will cease
to be Outstanding. By 12:00 noon, New York time, on such redemption date, the
Company will either (X) irrevocably deposit with the Paying Agent, if any,
funds sufficient to pay the Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Series A Preferred Securities to be redeemed or (Y) pay the
Redemption Price to such Holders. Any funds so set aside or deposited, as the
case may be, and unclaimed at the end of three years from such redemption date
shall, to the extent permitted by law, be released or repaid to the Company,
after which repayment the Holders of the Series A Preferred Securities so called
for redemption shall look only to the Company for payment thereof. In the event
that any date fixed for 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 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 A Preferred Securities is improperly withheld or
refused and not paid either by the Company or by Protective pursuant to the
Guarantee Agreement, dated as of June 9, 1994, between Protective and the
Company (the "Guarantee Agreement"), dividends on such Series A 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.
(d) REDEMPTION IN EXCHANGE FOR SERIES A SUBORDINATED DEBENTURES.
In the event of an exchange pursuant to paragraph 4(b), after the date fixed for
any
9
<PAGE>
such exchange, (I) the Series A Preferred Securities will no longer be deemed
to be outstanding, (II) if the Series A Preferred Securities are represented
by a Global Preferred Security, the Depositary 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) if the
Series A Preferred Securities are represented by Certificated Preferred
Securities, any certificates representing Series A Preferred Securities not held
by the Depositary or its nominee will be deemed to represent Series A
Subordinated Debentures having a principal amount equal to the aggregate stated
liquidation preference of such Series A Preferred Securities until such
certificates are presented to the Company or its agent for exchange and (IV)
all rights of the Holders of the Series A Preferred Securities so exchanged will
cease, except for the right of such Holders to receive Series A Subordinated
Debentures. If the Series A Preferred Securities are exchanged for Series A
Subordinated Debentures, Protective agrees 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 were, prior to the exchange, listed.
6. VOTING RIGHTS. (a) The Series A Preferred Securities shall
not have general voting rights but shall have the rights set forth in this
paragraph 6. If (I) the Company shall have failed to pay dividends in full on
the Series A Preferred Securities for 18 monthly dividend periods (whether or
not there are legally available funds); (II) Protective breaches any of its
obligations under the Series A Subordinated Debentures or the Subordinated
Indenture relating thereto (or an Event of Default (as defined in the Series A
Subordinated Debentures) under the Series A Subordinated Debentures has occurred
and is continuing); or (III) Protective breaches any of its payment or other
obligations under the Guarantee Agreement, then the Holders of the outstanding
Series A 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 vote or consent as described in the Agreement, to
appoint and authorize a trustee to enforce the Company's rights as a creditor
under the Series A Subordinated Debentures against Protective (including the
acceleration of
10
<PAGE>
principal and accrued interest on the Series A Subordinated Debentures), enforce
the obligations undertaken by Protective under the Guarantee Agreement and
declare and pay dividends on the Series A Preferred Securities to the extent
that funds are held by the Company and legally available therefor. For purposes
of determining whether the Company 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 right to appoint a
trustee arises, the Class A Interest Holder will convene a separate general
meeting of Holders of preferred or preference limited liability company
interests in the Company entitled to vote for such appointment 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 stated liquidation preference
(plus all accumulated and unpaid dividends per limited liability company
interest) of the outstanding Series A 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 A
Preferred Securities or such default or breach by Protective, as the case may
be, shall have been cured.
(b) If any resolution is proposed for adoption by the Members of
the Company providing for, or the Class A Interest Holder or the Company
otherwise proposes to effect, (W) the amendment or alteration of the Agreement
(as amended by this Action) 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 interests of the
Company ranking, as to dividends or upon dissolution, liquidation or winding-up
of the Company, senior to the Series A Preferred Securities, (X) the
dissolution, liquidation or winding up of the Company, (Y) the waiver of any
rights of the Company under the Series A Subordinated Debentures or allow the
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<PAGE>
repurchase or repayment of the Series A Subordinated Debentures prior to June
30, 1999 (unless (I) there is an Event of Default specified in Section 5.1(5)
or 5.1(6) of the Subordinated Indenture relating thereto, or there is any other
Event of Default thereunder and such Series A Subordinated Debentures are
accelerated pursuant to the request of the Holders of 25% or more of the Series
A Preferred Securities or of a trustee appointed by the Holders of Series A
Preferred Securities as contemplated in the preceding paragraph or (II) in
connection with a redemption described in Section 4(b) hereof) or (Z) the
modification of any of Sections 2.7, 3.3, 6.2 and 7.1 of the Agreement, then the
Holders of outstanding Series A Preferred Securities (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 aggregate liquidation preference (plus all
accumulated and unpaid dividends) of such outstanding Preferred Securities.
(c) No vote or consent of the Holders of the Series A Preferred
Securities will be required for the Company to redeem and cancel Series A
Preferred Securities in accordance with the Agreement (as amended by this
Action).
(d) Holders of Series A Preferred Securities have no preemptive
rights.
(e) Notwithstanding that Holders of Series A Preferred Securities
are entitled to vote or consent under any of the circumstances described above,
any of the Series A Preferred Securities and any such other preference limited
liability company interests entitled to vote with such Series A Preferred
Securities as a single class outstanding at such time that are owned by
Protective or any Affiliate thereof, either directly or indirectly, shall not be
entitled to vote or consent and shall, for the purposes of
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<PAGE>
such vote or consent, be treated as if they were not Outstanding.
7. BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST COMPANY. The
Depository Trust Company ("DTC"), New York, New York, will act as the Depositary
for the Series A Preferred Securities. The Series A Preferred Securities will
initially be issued only in the form of one or more fully-registered global
securities representing in the aggregate the total number of Series A Preferred
Securities and registered in the name of Cede & Co. (DTC's nominee) and
substantially in the form of Annex B to the Agreement.
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 the Company as provided in the agreement between the
Company and DTC.
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IN WITNESS WHEREOF, the Class A Interest Holder has executed this
Action as of the 9th day of June, 1994.
By: PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
By: /s/ Drayton Nabers, Jr.
----------------------
Name: Drayton Nabers, Jr.
Title: President and
Chief Executive Officer
Attest: /s/ John K. Wright
-----------------------
Name: Secretary
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* * * * * * SPECIMEN * * * * * *
Exhibit 4(f)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE, AND SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 7.4 OF THE AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT REFERRED TO BELOW.
THIS CERTIFICATE IS TRANSFERABLE ONLY UPON COMPLIANCE WITH CERTAIN PROVISIONS OF
THE AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PLC CAPITAL
L.L.C. DATED AS OF MAY 20, 1994. BY ACCEPTANCE OF THIS CERTIFICATE, WHETHER
UPON ORIGINAL ISSUANCE OR SUBSEQUENT TRANSFER, EACH HOLDER OF THIS CERTIFICATE
AGREES THAT IT SHALL TRANSFER THIS CERTIFICATE ONLY AS PROVIDED IN SUCH
AGREEMENT.
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
Certificate Number Number of Preferred Securities
- - - --------------------------------------------------------------------------------
1 2,200,000
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
CUSIP NO. 693405201
Certificate Evidencing Preferred Securities
of
PLC CAPITAL L.L.C.
9% 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")
<PAGE>
* * * * * * SPECIMEN * * * * * *
is the registered owner of 2,200,000 (two million, two hundred thousand)
Preferred Securities, representing preferred limited liability company interests
in the Company, designated the 9% 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 dated as of May 20, 1994, as the same may from time to time be
amended (the "LIMITED LIABILITY COMPANY AGREEMENT"), and the Action
authorizing the issuance of the Series A Preferred Securities and determining
the powers, preferences 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 and such Action 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 as of June 9, 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 as of June 1, 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 principal 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
2
<PAGE>
* * * * * * SPECIMEN * * * * * *
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. Upon issuance or
acquisition of this Series A Preferred Security in accordance with Article III
and Article VII of the Limited Liability Company Agreement, the Holder hereof is
admitted to the Company as a Member of the Company, is bound by the terms of the
Limited Liability Company Agreement and is entitled to the benefits thereunder.
3
<PAGE>
* * * * * * SPECIMEN * * * * * *
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 Paying Agent.
PLC CAPITAL L.L.C.
By PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
________________________
By:
Title:
PROTECTIVE LIFE CORPORATION,
as Guarantor
________________________
By:
Title:
AMSOUTH BANK N.A.,
as Paying Agent
________________________
By:
Title:
4
<PAGE>
Exhibit 4(h)
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK N.A., Trustee
SUBORDINATED INDENTURE
Dated as of June 1, 1994
Providing for Issuance of Subordinated
Debt Securities in Series
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Subordinated Indenture, dated as of June 1, 1994,
and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Subordinated
of 1939 Section Inedenture Section
- - - ------------------- -------------------
310(a)(1)................................. 6.12
(a)(2)................................ 6.12
(a)(3)................................ TIA
(a)(4)................................ Not applicable
(a)(5)................................ TIA
(b)................................... 6.10; 6.12; TIA
311(a).................................... TIA
(b)................................... TIA
312(a).................................... 6.8
(b)................................... TIA
(c)................................... TIA
313(a).................................... 6.7; TIA
(b)................................... TIA
(c)................................... 6.7; TIA
(d)................................... 6.7; TIA
314(a).................................... 9.5; 9.6; TIA
(b)................................... Not Applicable
(c)(1)................................ 1.2
(c)(2)................................ 1.2
(c)(3)................................ Not Applicable
(d)................................... Not Applicable
(e)................................... 1.2
(f)................................... TIA
315(a).................................... 6.1
(b)................................... 6.6
(c)................................... 6.1
(d)(1)................................ TIA
(d)(2)................................ TIA
(d)(3)................................ TIA
(e)................................... TIA
316(a)(last sentence)..................... 1.1
(a)(1)(A)............................. 5.2; 5.8
(a)(1)(B)............................. 5.7
(b)................................... 5.9; 5.10
<PAGE>
(c)................................... 1.4; TIA
317(a)(1)................................. 5.3
(a)(2)................................ 5.4
(b)................................... 9.3
318(a).................................... 1.11
(b)................................... TIA
(c)................................... 1.11; TIA
- - - ---------------------
This reconciliation and tie section does not constitute part of the
Subordinated 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
3.11. CUSIP Numbers.......................................... 43
3.12. Currency and Manner of Payment in
Respect of Securities............................... 43
3.13. Appointment and Resignation of Exchange
Rate Agent.......................................... 49
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............................. 52
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..................... 57
4.8. Repayment to Company................................... 58
4.9. Indemnity for Government Obligations................... 58
4.10. Reinstatement.......................................... 58
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.......................... 62
5.4. Trustee May File Proofs of Claim....................... 62
5.5. Trustee May Enforce Claims Without
Possession of Securities............................ 63
5.6. Delay or Omission Not Waiver........................... 63
5.7. Waiver of Past Defaults................................ 63
5.8. Control by Majority.................................... 64
5.9. Limitation on Suits by Holders......................... 64
5.10. Rights of Holders to Receive Payment..................... 65
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.................................................. 67
6.1. Certain Duties and Respon-
sibilities of the Trustee........................... 67
6.2. Rights of Trustee...................................... 67
6.3. Trustee May Hold Securities............................ 69
6.4. Money Held in Trust.................................... 69
6.5. Trustee's Disclaimer................................... 69
6.6. Notice of Defaults..................................... 69
ii
<PAGE>
PAGE
----
6.7. Reports by Trustee to Holders.......................... 69
6.8. Securityholder Lists................................... 70
6.9. Compensation and Indemnity............................. 70
6.10. Replacement of Trustee................................. 71
6.11. Acceptance of Appointment by
Successor........................................... 73
6.12. Eligibility; Disqualification.......................... 75
6.13. Merger, Conversion, Consolidation or
Succession to Business.............................. 75
6.14. Appointment of Authenticating Agent.................... 76
ARTICLE 7 Consolidation, Merger or Sale by the Company................. 78
7.1. Consolidation, Merger or Sale of Assets
Permitted........................................... 78
ARTICLE 8 Supplemental Indentures...................................... 79
8.1. Supplemental Indentures Without
Consent of Holders................................. 79
8.2. Supplemental Indentures With Consent
of Holders.......................................... 81
8.3. Compliance with Trust Indenture Act.................... 82
8.4. Execution of Supplemental Indentures................... 82
8.5. Effect of Supplemental Indentures...................... 83
8.6. Reference in Securities to Supplemental
Indentures.......................................... 83
ARTICLE 9 Covenants.................................................... 83
9.1. Payment of Principal, Premium, if any,
and Interest........................................ 83
9.2. Maintenance of Office or Agency........................ 84
9.3. Money for Securities Payments to Be
Held in Trust; Unclaimed Money...................... 85
9.4. Corporate Existence.................................... 87
9.5. Reports by the Company................................. 87
9.6. Annual Review Certificate; Notice of
Defaults or Events of Default....................... 88
9.7. Books of Record and Account............................ 89
ARTICLE 10 Redemption................................................... 89
10.1. Applicability of Article............................... 89
10.2. Election to Redeem; Notice to Trustee.................. 89
10.3. Selection of Securities to Be Redeemed................. 89
10.4. Notice of Redemption................................... 90
10.5. Deposit of Redemption Price............................ 92
10.6. Securities Payable on Redemption Date.................. 92
10.7. Securities Redeemed in Part............................ 93
iii
<PAGE>
PAGE
----
ARTICLE 11 Sinking Funds................................................ 94
11.1. Applicability of Article............................... 94
11.2. Satisfaction of Sinking Fund Payments
with Securities..................................... 94
11.3. Redemption of Securities for Sinking
Fund................................................ 95
ARTICLE 12 Subordination................................................ 95
12.1. Agreement to Subordinate............................... 95
12.2. Certain Definitions.................................... 96
12.3. Liquidation; Dissolution; Bankruptcy;
Etc................................................. 96
12.4. Default on Senior Indebtedness......................... 97
12.5. When Distribution Must Be Paid Over.................... 97
12.6. Notice by Company.......................................98
12.7. Subrogation............................................ 98
12.8. Relative Rights........................................ 99
12.9. Subordination May Not Be Impaired by
Company............................................. 99
12.10. Distribution........................................... 99
12.11. Rights of Trustee and Paying Agent.................... 100
12.12 Authorization to Effect Subordination................. 100
iv
<PAGE>
SUBORDINATED INDENTURE, dated as of June 1, 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. Unless otherwise specified pursuant to Section 3.1 with respect to a
series of Securities or as otherwise provided herein, owners of beneficial
interests in Securities of such series represented by a Security issued in
global form will not be entitled to have Securities of such series registered in
their names, will not receive or be entitled to receive physical delivery of
Securities of such series in certificated form and will not be considered the
holders thereof for any purposes hereunder.
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.
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Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in certificated form in
the circumstances described below, a Security in global form representing all or
a portion of the Securities of a series may not be transferred or exchanged
except as a whole by the Depository for such series to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository for such series or a nominee of such successor Depository.
If at any time the Depository for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depository
for the Securities of such series or if at any time the Depository for the
Securities of such series shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depository with respect to the Securities of
such series. If a successor Depository for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 3.1(b)(23) shall no longer be effective with respect to the Securities
of such series and the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated Securities of
such series of like tenor, shall authenticate and deliver, Securities of such
series of like tenor in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such
Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
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If specified by the Company pursuant to Section 3.1 with respect to
a series of Securities, the Depository for such series may surrender a Security
in global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Company
and such Depository. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(i) to each Person specified by such Depository a new certificated
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Security in global form; and
(ii) to such Depository a new Security in global form of like tenor
in a denomination equal to the difference, if any, between the principal
amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series
that such Security may be exchanged for Bearer Securities, Securities in
certificated form issued in exchange for a Security in global form pursuant to
this Section shall be registered in such names and in such authorized
denominations as the Depository for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or upon any
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
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Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the Registrar
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Registrar and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
for any exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration or transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
If the Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required (i) to
issue, register the transfer of, or exchange any Securities for a period
beginning at the opening of business 15 days before any selection for redemption
of Securities of like tenor and of the series of which such Security is a part
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of Securities
of like tenor and of such series to be redeemed; (ii) to register the transfer
of or exchange any Registered Security so selected for redemption, in whole or
in part, except the unredeemed portion of any Security being redeemed in part;
or (iii) to exchange any Bearer Security so selected for redemption, except
that such a Bearer Security may be exchanged for a Registered Security of that
series and like tenor; PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by a Board Resolution or in one or more indentures supplemental
hereto.
Section 3.6. REPLACEMENT SECURITIES. If a mutilated Security or
a Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Registered Security,
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if such surrendered Security was a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was a Bearer Security, of the
same series and date of maturity, if the Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or Security with a destroyed, lost or stolen coupon and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a replacement Registered Security, if
such Holder's claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the
destroyed, lost or stolen Bearer Security or the Bearer Security to which such
lost, destroyed or stolen coupon appertains, if such Holder's claim appertains
to a Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding with coupons corresponding to the coupons, if any, appertaining to
the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or coupon, pay such Security
or coupon; PROVIDED, HOWEVER, that payment of principal of and any premium
or interest on Bearer Securities shall, except as otherwise provided in Section
9.2, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge
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that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee, its agents and counsel) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
securities and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a)
Unless otherwise provided as contemplated by Section 3.1 with respect to any
series of securities, interest, if any, on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to 9.2; PROVIDED, HOWEVER, that at the option of the
Company, interest on any series of Registered Securities that bear interest may
be paid (i) by check mailed to the address of the Person entitled thereto as
it shall appear on the Register of Holders of Securities of such series or
(II) at the expense of the Company, by wire transfer to an account maintained
by the Person entitled thereto as specified in the Register of Holders of
Securities of such series.
Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of securities, (i) interest, if any, on Bearer
Securities shall be paid only against presentation and surrender of the coupons
for such interest installments as are evidenced thereby as they mature and
(II) original issue discount, if any, on Bearer Securities shall be paid only
against presentation and
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surrender of such Securities; in either case at the office of a Paying Agent
located outside the United States, unless the Company shall have otherwise
instructed the Trustee in writing provided that any such instruction for payment
in the United States does not cause any Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations.
The interest, if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon of the
payment of such interest. If at the time a payment of principal of or interest,
if any, on a Bearer Security or coupon shall become due, the payment of the full
amount so payable at the office or offices of all the Paying Agents outside the
United States is illegal or effectively precluded because of the imposition of
exchange controls or other similar restrictions on the payment of such amount in
Dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States, provided that provision
for such payment in the United States would not cause such Bearer Security to be
treated as a "registration-required obligation" under United States laws and
regulations.
(b) Unless otherwise provided as contemplated by Section 3.1 with
respect to any series of securities, any interest on Registered Securities of
any series which is payable, but is not punctually paid or duly provided for, on
any interest payment date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holders on the relevant Regular Record Date by virtue
of their having been such Holders, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of such Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the trustee for such deposit prior to the
date of the proposed payment, such
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money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of such Registered Securities at his address as it appears in
the Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of such Defaulted Interest to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on a
specified date in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause (2), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8. PERSONS DEEMED OWNERS. Prior to due presentment of
any Registered Security for registration of transfer, the Company, the Trustee
and any agent of the
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Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section
3.7) interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depository (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depository and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depository (or its
nominee) as Holder of such Security in global form.
Section 3.9. CANCELLATION. The Company at any time may deliver
Securities and coupons to the Trustee for cancellation. The Registrar and any
Paying Agent shall forward to the Trustee any Securities and coupons surrendered
to them for replacement, for registration of transfer, or for exchange or
payment. The Trustee shall cancel all Securities and coupons surrendered for
replacement, for registration of transfer, or for exchange, payment, redemption
or cancellation and may, but shall not
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be required to, dispose of cancelled Securities and coupons and issue a
certificate of destruction to the Company. The Company may not issue new
Securities to replace Securities that it has paid or delivered to the Trustee
for cancellation.
Section 3.10. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 3.1, interest on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, in such
case, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
Section 3.12. CURRENCY AND MANNER OF PAYMENT IN RESPECT OF
SECURITIES. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of, premium, if any, and interest, if any, on
any Registered or Bearer Security of such series will be made in the currency or
currencies or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 3.12
may be modified or superseded pursuant to Section 3.1 with respect to any
Securities.
(b) It may be provided pursuant to Section 3.1, with respect to
Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium,
if any, or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee (or the applicable Paying Agent) a written election
with
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signature guarantees and in the applicable form established pursuant to Section
3.1, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such currency or currency unit, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (or any applicable
Paying Agent) for such series of Registered Securities (but any such change must
be made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made on
such payment date, and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or with respect to which the Company has
deposited funds pursuant to Article 4 or with respect to which a notice of
redemption has been given by or on behalf of the Company). Any Holder of any
such Registered Security who shall not have delivered any such election to the
Trustee (or any applicable Paying Agent) not later than the close of business on
the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant currency or currency unit as provided in Section
3.12(a). The Trustee (or the applicable Paying Agent) shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the aggregate
principal amount of Registered Securities for which Holders have made such
written election.
(c) If the election referred to in paragraph (b) above has been
provided for with respect to any Registered Securities of a series pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with
respect to any such Registered Securities, not later than the fourth Business
Day after the Election Date for each payment date for such Registered
Securities, the Exchange Rate Agent will deliver to the Company a written notice
specifying, in the currency or currencies or currency unit or units in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of, premium, if any, and interest, if any, on such
Registered Securities to be paid on such payment date, and specifying the
amounts in such currency or currencies or currency unit or units so payable in
respect of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit or units
shall have elected to be paid in another currency or currency unit as
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provided in paragraph (b) above. If the election referred to in paragraph (b)
above has been provided for with respect to any Registered Securities of a
series pursuant to Section 3.1, and if at least one Holder has made such
election, then, unless otherwise specified pursuant to Section 3.1, on the
second Business Day preceding such payment date the Company will deliver to the
Trustee (or the applicable Paying Agent) an Exchange Rate Officers' Certificate
in respect of the Dollar, Foreign Currency or Currencies, ECU or other currency
unit payments to be made on such payment date. Unless otherwise specified
pursuant to Section 3.1, the Dollar, Foreign Currency or Currencies, ECU or
other currency unit amount receivable by Holders of Registered Securities who
have elected payment in a currency or currency unit as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency, ECU or any other currency unit in which any of the Securities are
denominated or payable otherwise than pursuant to an election provided for
pursuant to paragraph (b) above, then, with respect to each date for the payment
of principal of, premium, if any, and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, ECU or such other
currency unit occurring after the last date on which such Foreign Currency, ECU
or such other currency unit was used (the "Conversion Date"), the Dollar shall
be the currency of payment for use on each such payment date (but such Foreign
Currency, ECU or such other currency unit that was previously the currency of
payment shall, at the Company's election, resume being the currency of payment
on the first such payment date preceded by 15 Business Days during which the
circumstances which gave rise to the Dollar becoming such currency no longer
prevail). Unless otherwise specified pursuant to Section 3.1, the Dollar amount
to be paid by the Company to the Trustee or any applicable Paying Agent and by
the Trustee or any applicable Paying Agent to the Holders of such Securities
with respect to such payment date shall be, in the case of a Foreign Currency
other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in
the case of a Foreign Currency that is a currency unit, the Dollar Equivalent of
the Currency Unit,
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in each case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the
Holder of a Registered Security denominated in any currency or currency unit
shall have elected to be paid in another currency or currency unit or in other
currencies as provided in paragraph (b) above, and (i) a Conversion Event
occurs with respect to any such elected currency or currency unit, such Holder
shall receive payment in the currency or currency unit in which payment would
have been made in the absence of such election and (ii) if a Conversion Event
occurs with respect to the currency or currency unit in which payment would have
been made in the absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) of this Section 3.12 (but, subject to any
contravening valid election pursuant to paragraph (b) above, the elected payment
currency or currency unit, in the case of the circumstances described in clause
(i) above, or the payment currency or currency unit in the absence of such
election, in the case of the circumstances described in clause (ii) above,
shall, at the Company's election, resume being the currency or currency unit of
payment with respect to Holders who have so elected, but only with respect to
payments on payment dates preceded by 15 Business Days during which the
circumstances which gave rise to such currency or currency unit, in the case of
the circumstances described in clause (i) above, or the Dollar, in the case of
the circumstances described in clause (ii) above, as applicable, becoming the
currency or currency unit of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by the Exchange Rate Agent by converting the specified Foreign
Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions of
paragraph (h) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency (as each such term is defined in
paragraph (h) below) into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
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(h) For purposes of this Section 3.12 the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant to Section 3.1
by which the written election referred to in Section 3.12(b) may be made.
A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which such Component
Currency represented in the relevant currency unit, including, but not limited
to, ECU, on the Conversion Date. If after the Conversion Date the official unit
of any Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such two or
more currencies on the date of such replacement, shall be equal to the Specified
Amount of such former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not
limited to, ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market
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Exchange Rate in effect on the Conversion Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee (and any applicable Paying Agent) and all
Holders of Securities denominated or payable in the relevant currency,
currencies or currency units. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee of any such decision or
determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will promptly give written notice thereof to the Trustee (or any applicable
Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying
Agent) will promptly thereafter give notice in the manner provided in Section
1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to ECU
or any other currency unit in which Securities are denominated or payable, the
Company will promptly give written notice thereof to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or
such Paying Agent)) will promptly thereafter give notice in the manner provided
in Section 1.6 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event the Company determines in good faith that any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above has
occurred, the Company will similarly give written notice to the Trustee (or any
applicable Paying Agent) and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
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Section 3.13. APPOINTMENT AND RESIGNATION OF EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 3.1, if and so long as the
Securities of any series (i) are denominated in a currency other than Dollars
or (ii) may be payable in a currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.12 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currencies or currency unit or units into the applicable
payment currency or currency unit for the payment of principal, premium, if any,
and interest, if any, pursuant to Section 3.12.
(b) No resignation of the Exchange Rate Agent and no appointment of
a successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agency for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.1, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency or currencies or currency unit or units).
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
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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).
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
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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,
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
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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 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
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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, 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
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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:
(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
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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
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
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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 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 (and premium, if any) or interest on the Securities of
such series and coupons appertaining thereto on the date of such deposit.
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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 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.
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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 (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
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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 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
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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, (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
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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.
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
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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, 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
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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 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
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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 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
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(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, 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
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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.
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,
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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 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 successor Trustee's acceptance of appointment as
provided in Section 6.11.
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(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 giving of such notice of resignation or removal, the Trustee resigning
or being removed may petition any court of
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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
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall
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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.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more
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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 this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
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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 Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
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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 alternate certificate of authentication substantially in the
following form:
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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;
(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
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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, 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
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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, 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
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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 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);
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(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 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
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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 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
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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 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
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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 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
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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 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
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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 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
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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.
(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)
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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
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
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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.
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
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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;
(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
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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 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
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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 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
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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 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
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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 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.
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Section 12.2. CERTAIN DEFINITIONS.
"SENIOR INDEBTEDNESS" means the principal, premium, if any, and
interest on (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) indebtedness incurred for the
purchase of goods or materials or for services obtained in the ordinary course
of business and (B) 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
(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
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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, 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
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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
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
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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 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
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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
rights.
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
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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: /s/ John D. Johns
-----------------------------------
Name: John D. Johns
Title: Executive Vice President and
Chief Financial Officer
[Seal]
Attest:
/s/ John K. Wright
- - - -----------------------------
Name: John K. Wright
Title: Secretary
AMSOUTH BANK N.A.
By: /s/ Charles S. Northen IV
------------------------------
Name: Charles S. Northen IV
Title: Assistant Vice President and
Corporate Trust Officer
[Seal]
Attest:
/s/ T. Franklin Caley
- - - ------------------------------
Name: T. Franklin Caley
Title: Vice President and
Corporate Trust Officer
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Exhibit 4(h)(1)
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK N.A., as Trustee
------------------------------
SUPPLEMENTAL INDENTURE No. 1
Dated as of June 9, 1994
------------------------------
9% Subordinated Debentures
Due June 30, 2024, Series A
$ 69,620,275
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
<PAGE>
PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 1
$ 69,620,275
9% Subordinated Debentures
Due June 30, 2024, Series A
SUPPLEMENTAL INDENTURE No. 1, dated as of June 9, 1994, from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to AMSOUTH
BANK N.A., a national banking corporation, as trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a
Subordinated Indenture, dated as of June 1, 1994 (the "Indenture"), providing
for the issuance from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities of
such series:
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 1 constitutes an
integral part of the Indenture.
<PAGE>
Section 1.2. For all purposes of this Supplemental Indenture
No. 1:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of
this Supplemental Indenture No. 1; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 1.
ARTICLE 2
The Series of Securities
Section 2.1. TITLE OF THE SECURITIES. There shall be a
series of Securities designated the "9% Subordinated Debentures Due June 30,
2024, Series A" (the "Securities").
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF
SECURITIES. The aggregate principal amount of the Securities shall be limited
to $69,620,275. Each Security shall be dated the date of its authentication.
Section 2.3. PRINCIPAL PAYMENT DATES. The principal amount
of the Securities Outstanding (together with any accrued and unpaid interest
thereon) shall be payable in a single installment on June 30, 2024.
Section 2.4. INTEREST AND INTEREST RATES. The rate of
interest on each Security shall be 9% per annum, accruing from June 9, 1994 and,
subject to Section 2.5, interest shall be payable, in arrears, on the last day
of each calendar month of each year (each an "Interest Payment Date"),
commencing June 30, 1994. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of twelve 30-day months and a
360-day year and, for any period that is shorter than a full calendar month,
will be calculated on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on a Security
is not a Business Day,
2
<PAGE>
then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect 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. The interest so payable on any Security which is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Security is registered at the close of business on the Regular
Record Date for such Interest Payment Date, which, for purposes of this
Supplemental Indenture No. 1, shall be the Business Day preceding such
Interest Payment Date. The interest so payable on any Security which is not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Security is
registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Security is registered
on the special record date or other specified date determined in accordance with
the Indenture.
Section 2.5. EXTENSION OF INTEREST PAYMENT PERIOD.
Notwithstanding anything contained herein or in the Indenture to the contrary,
the Company shall have the right at any time or times during the term of the
Securities, so long as the Company is not in default in the payment of interest
on the Securities, to extend the interest payment period to the next Interest
Payment Date by one or more monthly periods (not to exceed 60 months from the
last date on which interest was paid in full), at the end of which period the
Company shall pay all interest then accrued and unpaid (compounded monthly to
the extent permitted by applicable law); PROVIDED that, during any such
extended Interest Payment Period or at any time during which there is an uncured
Default or Event of Default under the Securities, the Company 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 the Company's share purchase rights plan established under its
Rights Agreement, dated July 17, 1987, as amended (the "Share Purchase Rights
Plan", which term includes any successor to such plan) and (B) payments under
the Guarantee Agreement, dated as of June 9, 1994, of the Company (the
"Guarantee") with respect to the 9% Cumulative Monthly Income Preferred
Securities,
3
<PAGE>
Series A (the "Series A Preferred Securities") issued by PLC Capital L.L.C ("PLC
Capital"), a Delaware limited liability company, or any guarantee of any other
series of preferred limited liability company interests in PLC Capital ranking
PARI PASSU with the Series A Preferred Securities. The Company shall give the
Holders of the Securities and the holders of the Series A Preferred Securities
not less than five Business Days' prior notice of its selection of an extended
Interest Payment Period pursuant to this Section 2.5.
Section 2.6. PLACE OF PAYMENT. The Place of Payment where
the Securities may be presented or surrendered for payment, where the Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to and upon the Company in respect of the Securities and the
Indenture may be served shall be the Corporate Trust Office of the Trustee.
Section 2.7. PREPAYMENT.
(a) MANDATORY PREPAYMENT. If PLC Capital redeems Series A
Preferred Securities in cash in accordance with the terms thereof, the
Securities 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
set for redemption) (the "Redemption Payment"). Such Redemption Payment shall
be made at the Place of Payment prior to 12:00 noon, New York time, on such
redemption date. In addition, the principal amount of the Securities (together
with any accrued and unpaid interest thereon) will become due and payable in the
event of the dissolution, winding-up or liquidation of PLC Capital.
(b) OPTIONAL PREPAYMENT. The Securities may be prepaid upon not
less than 30 days' notice by mail, at any time on or after June 30, 1999, in
whole or in part, at the election of the Company, together with any accrued but
unpaid interest to the date set for prepayment.
Section 2.8. CERTAIN ADDITIONAL TERMS. So long as the Holder
of the Securities is PLC Capital, under certain circumstances, PLC Capital may
exchange at its option or the Company may cause PLC Capital to exchange, with
the holders of Series A Preferred Securities, its Series A Preferred Securities
for the Securities. Upon any such exchange, (I) the Securities will no longer
be subject to
4
<PAGE>
mandatory prepayment upon the dissolution, winding-up or liquidation of PLC
Capital, (II) the Securities will not be subject to an election by the Company
to exchange the Securities for new debentures or to repay the Securities and
reborrow the proceeds from such repayment, (III) the Company will use its best
efforts to have the Securities listed on the same exchange on which the Series A
Preferred Securities are listed and (IV) the Indenture, this Supplemental
Indenture No. 1 and the terms of the Securities may, thereafter, be modified or
amended with the consent of not less than 66-2/3% in principal amount of the
Securities at any time outstanding, PROVIDED, however, that no such
modification or amendment may, without the consent of the Holder of each
Security affected thereby, (A) extend the stated maturity of the principal of
any Security, 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 Security when due or (B) reduce the
aforesaid principal amount of Securities, the consent of the Holders of which is
required for any such modification.
Section 2.9. CERTAIN SET-OFF RIGHTS OF THE COMPANY.
Notwithstanding anything to the contrary in the Indenture, the Company may
set-off any payment it is otherwise required to make under the Securities with
and to the extent the Company has theretofore made, or is concurrently on the
date of such payment making, a payment under the Guarantee.
Section 2.10. ADDITIONAL COVENANTS. The Company agrees 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 the Company's Share Purchase Rights Plan and (B)
payments under the Guarantee or under any other guarantee of 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 Default or (Y) the Company shall be in default with respect to its payment
or other obligations under the Guarantee; (II) it shall maintain ownership,
directly or indirectly, of all of the Common Securities of PLC Capital (as
defined in the Amended and Restated Limited
5
<PAGE>
Liability Company Agreement of PLC Capital (the "L.L.C. Agreement"); and (III)
it shall timely perform all of its respective duties under the L.L.C. Agreement.
The Company also agrees (I) that its obligations under the
Securities 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 Securities directly
against the Company as third party beneficiaries of the Company'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 Default or Event of Default has occurred and is continuing, or would
occur as a result of such merger and (B) the Company 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
Securities.
Section 2.11. DENOMINATION. The Securities shall be issuable
in denominations of $25 and integral multiples thereof.
Section 2.12. CURRENCY. Principal and interest on the
Securities shall be payable in Dollars.
Section 2.13. REGISTERED SECURITIES. The Securities shall be
issued as Registered Securities, without coupons and shall be registered in the
name of PLC Capital and its permitted registered assigns.
Section 2.14. FORM OF SECURITIES. The Securities shall be
substantially in the form attached as Exhibit A hereto.
Section 2.15. DEFEASANCE AND COVENANT DEFEASANCE. The
provisions of Sections 4.4 and 4.5 of the Indenture shall apply to the
Securities.
Section 2.16. REGISTRAR AND PAYING AGENT. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.17. ADDITIONAL PROVISIONS REGARDING AMENDMENTS. So
long as the Holder of the Securities is PLC Capital, the terms of the Securities
may be amended by mutual consent of the Company and PLC Capital in the manner
they shall agree; PROVIDED, HOWEVER, that, so long as any of
6
<PAGE>
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 Securities shall occur, and no Event of Default or compliance
with any covenant under the Securities 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.
Section 2.18. ADDITIONAL PROVISIONS REGARDING ASSIGNMENT. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned subsidiary
of the Company; PROVIDED, HOWEVER, that, in the event of any such
assignment, the Company shall remain jointly and severally liable for all such
obligations. So long as PLC Capital is the Holder of the Securities, PLC
Capital may not assign any of its rights under the Securities, other than in
connection with a merger or consolidation or sale of assets or exchange
permitted under the terms of the Series A Preferred Securities. Subject to the
foregoing, the Securities shall be binding upon and inure to the benefit of the
Company and PLC Capital and their respective permitted successors and assigns.
Any assignment by the Company or PLC Capital in contravention of such provisions
will be null and void.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 1, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 1 may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed, as of the day and year first written above.
PROTECTIVE LIFE CORPORATION
By: /s/ Drayton Nabers, Jr.
-----------------------
Name: Drayton Nabers, Jr.
Title: President and
Chief Executive Officer
By: /s/ John D. Johns
-----------------------
Name: John D. Johns
Title: Executive Vice President and
Chief Financial Officer
[Seal]
Attest: /s/ John K. Wright
-----------------------
Name: John K. Wright
Title: Secretary
AMSOUTH BANK N.A.,
Trustee
By: /s/ Charles S. Northen IV
-----------------------
Name: Charles S. Northen IV
Title: Assistant Vice President and
Corporate Trust Officer
[Seal]
Attest: /s/ Ann M. Harris
-----------------------
Name: Ann M. Harris
Title: Assistant Vice President and
Corporate Trust Officer
<PAGE>
Exhibit 4(k)
[FORM OF FACE OF SERIES A SUBORDINATED DEBENTURE]
THIS SERIES A SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF PLC
CAPITAL L.L.C. AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF
OTHER THAN AS PERMITTED IN THE SUPPLEMENTAL INDENTURE NO. 1 DATED AS OF
JUNE 9, 1994, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
PROTECTIVE LIFE CORPORATION
9% Subordinated Debentures
Due June 30, 2024, Series A
No. 1 $69,620,275
PROTECTIVE LIFE CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture (as defined on the
reverse hereof)), for value received, hereby promises to pay to PLC Capital
L.L.C. or permitted registered assigns, the principal sum of $69,620,275 Dollars
on June 30, 2024 and to pay interest thereon from June 9, 1994. Interest shall
be payable on this Subordinated Debenture, in arrears, on the last day of each
calendar month of each year (each an "Interest Payment Date") commencing June
30, 1994, at the rate of 9% per annum, until the principal hereof is paid or
made available for payment; PROVIDED that any such instalment of interest, which
is overdue shall bear interest at the rate of 9% per annum (to the extent that
the payment of such interest shall be legally enforceable) from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand; PROVIDED further that, notwithstanding
anything contained in the Indenture and Supplemental Indenture No. 1 (as defined
on the reverse hereof) to the contrary, the Company shall have the right at any
time during the term of this Security, so long as the Company is not in default
in the payment of interest on this Security, to extend the period to the next
Interest Payment Date by one or more monthly periods (not to exceed 60 months
from the last date on which interest was paid in full) at the end of which
period the Company shall pay all interest then accrued and unpaid (compounded
monthly to the extent permitted by applicable law); PROVIDED FURTHER, that,
during any such extended Interest Payment Period or at any time during which
there is an uncured Default or Event of Default under this Subordinated
Debenture, the Company shall comply
<PAGE>
with the covenants set forth in Section 2.5 of Supplemental Indenture No. 1
relating to such extended Interest Payment Period. The Company shall give the
holder of this Subordinated Debenture not less than five Business Days' prior
notice of its selection of such extended interest payment period.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full calendar month, will be calculated on the
basis of the actual number of days elapsed in such period. In the event that
any date on which interest is payable on this Security is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect 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. The interest so payable on any Interest Payment Date which is
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Subordinated Debenture is registered at the close of
business on the Regular Record Date for such Interest Payment Date, which shall
be the Business Day next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Person in whose name this Security is registered on the relevant
Regular Record Date, and such defaulted interest shall instead be payable to the
person in whose name this Subordinated Debenture is registered on the Special
Record Date for such defaulted interest or other specified date determined in
accordance with the Indenture and the Supplemental Indenture No. 1 referred to
on the reverse hereof.
Payment of the principal of and any such interest on this Subordinated
Debenture will be made at the Corporate Trust Office of the Trustee, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, PROVIDED, HOWEVER, that at
the option of the Company payment of interest may be paid (i) by check mailed to
the address of the person entitled thereto as such address shall appear in the
Register of Holders of the Subordinated Debentures or (ii) by wire transfer to
an account maintained by the Person entitled
2
<PAGE>
thereto as specified in the Register of Holders of the Securities.
Reference is hereby made to the further provisions of this
Subordinated Debenture set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated Debenture shall not be entitled to any benefit under the Indenture
and Supplemental Indenture No. 1 referred to on the reverse hereof or be valid
or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By___________________________
By___________________________
[CORPORATE SEAL]
This is one of the Securities of the series described in the within-
mentioned Indenture.
AMSOUTH BANK N.A., as Trustee
By___________________________
Authorized Signatory
4
<PAGE>
[FORM OF REVERSE OF SERIES A SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of June 1,
1994 (herein, together with all indentures supplemental thereto, including
Supplemental Indenture No. 1, dated as of June 9, 1994, called the "Indenture"),
from the Company to AmSouth Bank N.A. (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $69,620,275 and is issued pursuant to Supplemental
Indenture No. 1, dated as of June 9, 1994 from the Company to the Trustee,
relating to the Securities of this series (herein called "Supplemental Indenture
No. 1").
The indebtedness evidenced by this Security is to the extent provided
in the Indenture, subordinate and junior in right of payment to all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Securities of this series are subject to redemption upon not less
than 30 days' notice by mail, at any time on or after June 30, 1999, in whole or
in part, at the election of the Company, in an amount equal to the principal
amount hereof, together with accrued interest to the date set for such
redemption. The Securities of this series are also
5
<PAGE>
subject to mandatory redemption in accordance with the terms set forth in
Supplemental Indenture No. 1.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
indebtedness of this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of the Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture or to Supplemental Indenture No.
1 and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 1 shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of,
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and interest on, this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Security is registered as the owner
hereof for all purposes, whether or not the Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Company and the Holder of this Security agree (i) that for United
States federal, state and local tax purposes it is intended that this 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 this Security the Company
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or such Holder, as the case may be, is prohibited from filing on such basis).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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