<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 12, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________________
RELIASTAR FINANCIAL CORP.
RELIASTAR FINANCING II
RELIASTAR FINANCING III
RELIASTAR FINANCING IV
RELIASTAR FINANCING V
(Exact name of the Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
41-1620373
APPLIED FOR
APPLIED FOR
APPLIED FOR
APPLIED FOR
(I.R.S. Employer Identification Nos.)
20 WASHINGTON AVENUE SOUTH
MINNEAPOLIS, MINNESOTA 55401
(612) 372-5432
(Address and telephone number
of the Registrant's principal executive offices)
COPIES TO:
RICHARD R. CROWL THOMAS G. MORGAN
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY FAEGRE & BENSON LLP
RELIASTAR FINANCIAL CORP. 2200 NORWEST CENTER
20 WASHINGTON AVENUE SOUTH MINNEAPOLIS, MINNESOTA 55402
MINNEAPOLIS, MINNESOTA 55401 (612) 336-3000
(612) 342-3514
(Name, address and telephone number of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the following
box and list the Securities Act registration statement number of earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[_]
_______________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
________________________________
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Amount of
Title of Each Class of Amount to Aggregate Registration
Securities to be Registered be Registered Offering Price(1)(2) Fee(3)(4)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ReliaStar Financial Corp. Debt Securities; Preferred $ $
Stock; Depository Shares; Securities Warrants;
Common Stock, including Rights to Purchase
Preferred Stock
ReliaStar Financing II Preferred Securities
ReliaStar Financing III Preferred Securities
ReliaStar Financing IV Preferred Securities
ReliaStar Financing V Preferred Securities
ReliaStar Financial Corp. back-up undertakings in
connection with the Preferred Securities of ReliaStar
Financing II, ReliaStar Financing III, ReliaStar
Financing IV, and ReliaStar Financing V(5)
- ---------------------------------------------------------------------------------------------------------------
TOTAL (1) $400,000,000(6) $121,212.13(7)
===============================================================================================================
</TABLE>
(1) Such indeterminate principal amount of Debt Securities, Preferred Stock,
Depository Shares, Securities Warrants, and Common Stock of ReliaStar
Financial Corp. and such indeterminate number of Preferred Securities of
ReliaStar Financing II, ReliaStar Financing III, ReliaStar Financing IV,
and ReliaStar Financing V (collectively, the "Financing Trusts") as may
from time to time be issued at indeterminate prices.
(2) Includes Debt Securities that may be issued by ReliaStar Financial Corp. to
evidence a loan by the Financing Trusts to ReliaStar Financial Corp. of any
proceeds from (i) the offer and sale of the Financing Trusts. No separate
consideration will be received for any Debt Securities. Debt Securities
evidencing the loan to ReliaStar Financial Corp. may later be distributed
to the holders of the Financing Trusts Preferred Securities upon a
dissolution of the Financing Trusts.
(3) Rights to Purchase Preferred Stock are initially attached to and trade with
the Common Stock. Value attributable to these Rights, if any, is
reflected in the market price for the Common Stock.
(4) Estimated solely for the purpose of calculating the registration fee under
Rule 457(o). The aggregate public offering price of the securities
registered hereby will not exceed $400 million.
(5) Includes the obligations of ReliaStar Financial Corp. under the Declaration
of Trust, the Preferred Securities Guarantee issued with respect to
Preferred Securities issued by the Financing Trusts, the Junior
Subordinated Debt Securities purchased by the Financing Trusts and the
Junior Subordinated Indenture, including ReliaStar Financial Corp.'s
agreement (under Section 4.3 of the Declaration of Trust and Article V of
the Supplemental Indenture) to pay all trust obligations other than those
under the Common and Preferred Securities, all as described in the
Registration Statement. The obligations of ReliaStar Financial Corp. under
the Declaration, Preferred Securities Guarantee, Junior Subordinated Debt
Securities and the Junior Subordinated Indenture will provide a full and
unconditional guarantee, on a subordinated basis, by ReliaStar Financial
Corp. of payments due on the Preferred Securities. Pursuant to Rule 457(n)
under the Securities Act of 1933, as amended, no fee is payable with
respect to the ReliaStar Financial Corp. Preferred Securities Guarantee and
the back-up undertakings.
(6) Exclusive of accrued interest, if any, and amount is in United States
dollars or the equivalent thereof in one or more foreign currencies or
composite securities, including European Currency Units, or, if any Debt
Securities are issued at an original issue discount, such greater amount as
shall result in equivalent net proceeds. No separate consideration will be
received for (i) Preferred Stock, Depositary Shares or Common Stock issued
in exchange for or on conversion of Debt Securities, Preferred Stock or
Depositary Shares, or (ii) the ReliaStar Financial Corp. Guarantee and the
back-up undertakings.
(7) Pursuant to the provisions of Rule 429 under the Securities Act of 1933, as
amended, the Prospectus contained in this Registration Statement also
relates to $125 million of unsold securities covered by the Registration
Statement on Form S-3 (Registration No. 33-80497) of ReliaStar Financial
Corp. and ReliaStar Financing I, which are being carried forward in
connection with this Registration Statement and includes the Registration
Fee of $37,878.80 that was previously paid with respect to these
securities.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in the State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED MAY 8, 1997
PROSPECTUS
$400,000,000
_________________________
RELIASTAR FINANCIAL CORP.
DEBT SECURITIES AND OTHER SECURITIES
_________________________
RELIASTAR FINANCING II
RELIASTAR FINANCING III
RELIASTAR FINANCING IV
RELIASTAR FINANCING V
PREFERRED SECURITIES
Fully and Unconditionally Guaranteed by
ReliaStar Financial Corp.
_________________________
ReliaStar Financial Corp., a Delaware corporation (the "Company"), may
offer, from time to time, (i) its unsecured debt securities consisting of
debentures or notes, which may be senior ("Senior Debt Securities"), senior
subordinated ("Senior Subordinated Debt Securities") or junior subordinated
("Junior Subordinated Debt Securities," and together with the Senior
Subordinated Debt Securities, "Subordinated Debt Securities," and the
Subordinated Debt Securities together with the Senior Debt Securities, "Debt
Securities"); (ii) warrants to purchase Debt Securities ("Debt Warrants"); (iii)
shares of its preferred stock,
(continued on the following page)
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company's Common Stock is traded on the New York Stock Exchange
("NYSE") under the symbol "RLR."
The Offered Securities (as defined herein) may be offered directly, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents or underwriters are involved in the
sale of any Offered Securities, their names, and any applicable fees,
commissions, purchase prices or discount arrangements with them, will be set
forth, or will be calculable from the information set forth, in a Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement applicable to the Offered
Securities being sold.
The date of this Prospectus is May __, 1997.
<PAGE>
(continued from previous page)
without par value ("Preferred Stock"), interests in which may be represented by
depositary shares ("Depositary Shares"); (iv) warrants to purchase Preferred
Stock or Depositary Shares ("Preferred Stock Warrants"); or (v) warrants to
purchase shares of its common stock, without par value ("Common Stock"),
("Common Stock Warrants," and, together with Debt Warrants and Preferred Stock
Warrants, "Securities Warrants"). Debt Securities, Preferred Stock, Depositary
Shares, Securities Warrants, Preferred Securities (referred to below) and the
Preferred Securities Guarantee (also referred to below) may be offered
separately or as a part of units consisting of one or more such securities
("Units"), in each case in one or more series and in amounts, on terms and at
prices to be determined at or prior to the time of sale and described in a
supplement accompanying this Prospectus (a "Prospectus Supplement"), and may be
convertible into or exchangeable for Common Stock, Debt Securities, Preferred
Stock, Depositary Shares or Preferred Securities. Senior Debt Securities will
rank on par with all other unsecured Debt (as defined herein) of the Company
other than Debt that by its terms is subordinated to the Senior Debt Securities.
Senior Subordinated Debt Securities will be subordinated to all existing and
future Debt of the Company other than Debt evidenced by Junior Subordinated Debt
Securities, which includes debt securities (and guarantees in respect of those
debt securities) initially issued to any trust, or a trustee of a trust,
partnership or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company ("Trust Related Securities") in
connection with the issuance by that entity of preferred securities or other
securities. Junior Subordinated Debt Securities will be subordinated to all
existing and future Debt of the Company other than Trust Related Securities and
will rank on par with such Trust Related Securities.
Debt Securities may be issued in registered or bearer form, or both. The offer,
sale and issuance of securities in bearer form, and payment thereof, to United
States Persons are restricted as discussed under "Description of Debt
Securities" and "Plan of Distribution."
ReliaStar Financing II, ReliaStar Financing III, ReliaStar Financing IV,
and ReliaStar Financing V, each a statutory business trust formed under Delaware
law (each, a "Financing Trust" and collectively, the "Financing Trusts"), may
offer, from time to time, in one or more series, preferred securities
representing undivided beneficial interests in the assets of a Financing Trust
("Preferred Securities"). The Financing Trusts were formed by the Company solely
to issue Preferred Securities and to loan the net proceeds from the sale thereof
to the Company. Accordingly, the net proceeds received from the sale of an
offering of Preferred Securities, together with all capital contributions made
to the Financing Trusts by the Company, will be loaned to the Company in
exchange for Junior Subordinated Debt Securities having terms described herein
and in a Prospectus Supplement. These Junior Subordinated Debt Securities
subsequently may be distributed pro rata to holders of Preferred Securities in
connection with the dissolution of the Financing Trusts upon the occurrence of
certain events as may be described in a Prospectus Supplement. Interest and
principal payments on these Junior Subordinated Debt Securities are intended to
fund the payment of periodic cash distributions ("distributions") and
liquidation and redemption amounts on such Preferred Securities. The payment of
distributions and payments on liquidation or redemption with respect to the
Preferred Securities will be guaranteed by the Company to the extent set forth
herein and in a Prospectus Supplement ("Preferred Securities Guarantee"). See
"The Financing Trusts" and "The Preferred Securities Guarantee." The Preferred
Securities Guarantee, when taken together with the Company's obligations under
any Junior Subordinated Debt Securities, the Junior Subordinated Indenture and
the Declaration, including its obligations to pay costs, expenses, debts and
liabilities of the Financing Trusts (other than with respect to the Preferred
Securities and the Common Securities (as defined herein)), will provide a full
and unconditional guarantee, on a subordinated basis, by the Company of payments
due on the Preferred Securities.
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The specific amounts, terms and prices of particular Debt Securities,
Preferred Stock, Depositary Shares, Securities Warrants, Preferred Securities,
Preferred Securities Guarantee and Units (collectively, "Offered Securities")
for which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement or Supplements and may include the initial
public offering price and such other terms as (i) in the case of Debt
Securities, the designation, aggregate principal amount, currency,
denominations, maturity, interest rate (which may be fixed or variable) and time
and method of calculating interest payments, any conversion, exchange or sinking
fund provisions, any provisions for redemption at the option of the Company or
repayment at the option of the holder, any premium provisions, any subordination
terms, the right of the Company, if any, to defer payment of interest on
Subordinated Debt Securities and the maximum length of any such deferral period;
(ii) in the case of Preferred Stock, the designation, number of shares, stated
value, any dividend, redemption, conversion, exchange, sinking fund and
liquidation provisions, voting and other rights and whether interests in the
Preferred Stock will be represented by Depositary Shares; (iii) in the case of
Securities Warrants, the duration, exercise price and detachability; and (iv) in
the case of Preferred Securities, the designation, number of securities, and any
distribution, redemption, exchange, sinking fund and liquidation provisions,
voting and other rights and the terms upon which the proceeds from the sale of
the Preferred Securities will be loaned to the Company in exchange for Junior
Subordinated Debt Securities. Units may be issued in amounts, at prices, on
terms and containing such conditions, covenants and other provisions, and
consisting of Offered Securities and other securities, as are set forth in a
Prospectus Supplement. A Prospectus Supplement also will contain, where
applicable, information about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of, the
Offered Securities covered by the Prospectus Supplement. The aggregate initial
public offering price (including the exercise price of any Securities Warrants)
of the Offered Securities in respect of which this Prospectus may be delivered
will not exceed $400,000,000 or the equivalent thereof in one or more foreign
currencies or composite currencies, including European Currency Units.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission, Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
located at 75 Park Place, 14th Floor, New York, New York 10007, and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of these materials
can be obtained by mail from the public reference section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy statements and other information filed by the Company at:
http://www.sec.gov. In addition, these materials may be inspected and copied at
the offices of the NYSE, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company and the Financing Trusts with the
Commission under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement for
further information with respect to the Company, the Financing Trusts and the
Offered Securities. Any statements contained herein concerning the provisions of
any document are not necessarily complete, and, in each instance, reference is
made to the copy of the
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<PAGE>
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission. Each such statement is qualified in its entirety by such
reference.
No separate financial statements of the Financing Trusts are included
herein. The Company and the Financing Trusts do not consider that such financial
statements would be material to holders of the Preferred Securities because (i)
the Financing Trusts are special purpose entities, have no independent
operations and are not engaged in, and do not propose to engage in, any activity
other than the issuance of the Common Securities (as defined herein), the
Preferred Securities, and the lending of the net proceeds from the sale of the
Common Securities and Preferred Securities to the Company pursuant to loans
evidenced by Junior Subordinated Debt Securities; (ii) the Company, a reporting
company under the Exchange Act, owns, directly or indirectly, all of the voting
securities of the Financing Trusts; and (iii) under the Preferred Securities
Guarantee, the Company will guarantee the payment of distributions and amounts
on liquidation and redemption of Preferred Securities to the extent described
herein. See "The Financing Trusts" and "The Preferred Securities Guarantee."
The Preferred Securities Guarantee, when taken together with the Company's
obligations under any Junior Subordinated Debt Securities, the Junior
Subordinated Indenture (as described herein) and the Declaration (as defined
herein), including its obligations to pay costs, expenses and certain
liabilities of the Financing Trusts (other than with respect to the Preferred
Securities and Common Securities), provides a full and unconditional guarantee
of amounts due on any Preferred Securities for which this Prospectus and
accompanying Prospectus Supplement or Supplements is being delivered. See
"Particular Terms of Junior Subordinated Debt Securities Issued in Connection
with Preferred Securities." The Financing Trusts are not currently subject to
the informational requirements of the Exchange Act. The Financing Trusts will
become subject to those requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive an exemption
therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-10640) pursuant to the Exchange Act are incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (which incorporates by reference certain portions of the
Company's 1996 Annual Report to Shareholders, including financial
statements and accompanying information, and certain portions of the
Company's definitive proxy statement for the Company's 1997 Annual Meeting
of Shareholders);
(ii) The Company's Current Reports on Form 8-K dated February 23,
1997 and April 23, 1997;
(iii) the Company's Form 8-K/A dated May 20, 1993 to the Company's
Current Report on Form 8-K dated January 17, 1989 filed by the Company in
lieu of a Registration Statement on Form 8-B and Amendment on Form 8A/A
dated September 12, 1994 to a Registration Statement on Form 8-A dated
October 4, 1989, as amended on February 15, 1990 (File No. 0-17441), which
contain a description of the Company's Common Stock and related Rights to
Purchase Preferred Stock of the Company; and
(iv) all other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of an offering of Offered
Securities.
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Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in any other subsequently filed document that also is or is deemed to be
incorporated herein or in an accompanying Prospectus Supplement by reference)
modifies or supersedes that statement. Any such statement so modified or
superseded shall not be deemed to constitute a part hereof or an accompanying
Prospectus Supplement except as so modified or superseded.
The Company will provide without charge to each person, including any
beneficial holder, to whom a copy of this Prospectus is delivered, upon the
written or oral request of that person, a copy of any or all of the documents
which are incorporated herein by reference (other than exhibits to those
documents, unless the exhibits are specifically incorporated therein by
reference). Requests should be directed to ReliaStar Financial Corp., 20
Washington Avenue South, Minneapolis, Minnesota 55401, Attn: Secretary,
telephone (612) 342-3514.
____________________
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR A PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING DESCRIBED
HEREIN AND THEREIN, AND ANY INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN
OR THEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS
MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES UNLESS ACCOMPANIED BY
A PROSPECTUS SUPPLEMENT APPLICABLE TO THE OFFERED SECURITIES BEING SOLD. THE
DELIVERY OF THIS PROSPECTUS AND A PROSPECTUS SUPPLEMENT RELATING TO PARTICULAR
OFFERED SECURITIES SHALL NOT CONSTITUTE AN OFFER OF ANY OF THE OTHER OFFERED
SECURITIES COVERED BY THIS PROSPECTUS. THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY THE OFFERED SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER
OR SOLICITATION OF AN OFFER TO BUY THE OFFERED SECURITIES IS UNLAWFUL.
THE COMPANY
The Company is a holding company whose subsidiaries specialize in life
insurance and related financial services. Through ReliaStar Life Insurance
Company ("ReliaStar Life"), Minneapolis, Minnesota, and other subsidiaries, the
Company issues and distributes individual life insurance and annuities, group
life and health insurance, life and health reinsurance, mutual funds,
residential mortgages, and personal finance education. The Company operates in
four business segments: Individual Insurance, Employee Benefits, Life and Health
Reinsurance, and Pension.
Other principal subsidiaries are Northern Life Insurance Company, ReliaStar
United Services Life Insurance Company, ReliaStar Bankers Security Life
Insurance Society, Northstar Investment Management Corporation, Successful Money
Management Seminars, Inc., and PrimeVest Financial Services, Inc.
On February 23, 1997, the Company entered into a definitive agreement to
merge Security-Connecticut Corporation, an insurance holding company, with and
into the Company. The merger
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is valued at approximately $488 million and is expected to close during the
summer of 1997. For more information on the merger, see the Company's Current
Report on Form 8-K dated February 23, 1997.
The Company, which was incorporated in Delaware in 1988, became the parent
of ReliaStar Life and its subsidiaries pursuant to a Plan of Conversion and
Reorganization which became effective on January 3, 1989. Under this plan,
ReliaStar Life, which was organized in 1885 (as "Northwestern National Life
Insurance Company"), was converted from a combined stock and mutual life
insurance company to a stock life insurance company.
The Company's principal executive offices are located at 20 Washington
Avenue South, Minneapolis, Minnesota 55401, telephone (612) 372-5432. References
herein to the Company relate to ReliaStar Financial Corp. and its subsidiaries.
THE FINANCING TRUSTS
Each Financing Trust is a statutory business trust formed under Delaware
law pursuant to (i) a separate declaration of trust executed by the Company, as
sponsor for the trust (the "Sponsor"), and Trustees (as defined herein) of the
Financing Trust and (ii) the filing of a certificate of trust with the Delaware
Secretary of State on May 8, 1997. Each declaration will be amended
and restated in its entirety (as so amended and restated, the "Declaration")
substantially in the form filed as an exhibit to the Registration Statement. The
Financing Trusts exist for the exclusive purposes of (i) issuing the Preferred
Securities and common securities representing undivided beneficial interests in
the assets of the Financing Trusts (the "Common Securities," and together with
the Preferred Securities, the "Trust Securities"), (ii) lending the net proceeds
from the sale of the Preferred Securities together with the capital
contributions made in respect of the Common Securities to the Company in
exchange for Junior Subordinated Debt Securities and (iii) engaging in only
those other activities necessary or incidental thereto. The distribution rate
and the disbursement payment dates and other payment dates for the Preferred
Securities will correspond to the interest rate and interest payment dates and
other payment dates on the Junior Subordinated Debt Securities, which will be
the sole assets of each Financing Trust.
All of the Common Securities will be directly or indirectly owned by the
Company. The Common Securities will rank on par, and payments will be made
thereon pro rata, with the Preferred Securities, except that, upon an event of
default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and amounts upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. The Company will directly or indirectly acquire Common
Securities in an aggregate liquidation amount equal to 3% of the total capital
of each Financing Trust. Each Financing Trust has a term of approximately 55
years, but may terminate earlier, as provided in the Declaration.
Each Financing Trust's business and affairs will be conducted by the
trustees (the "ReliaStar Trustees") appointed by the Company, as the direct or
indirect holder of all the Common Securities. The duties and obligations of the
ReliaStar Trustees shall be governed by the Declaration. The holder of the
Common Securities will be entitled to appoint, remove or replace any of, or
increase or reduce the number of, the ReliaStar Trustees. Financing Trust will
have two ReliaStar Trustees who are employees or officers of or who are
affiliated with the Company (the "Regular Trustees"). One ReliaStar Trustee will
be a financial institution that is not affiliated with the Company and has a
specified minimum amount of aggregate capital, surplus, and undivided profits of
not less than $50,000,000, which shall act as property trustee (the "Property
Trustee") and as indenture trustee for the purposes of the Trust Indenture Act
of 1939,
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as amended (the "Trust Indenture Act"), pursuant to the terms set forth in a
Prospectus Supplement. In addition, unless the Property Trustee maintains a
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, one Trustee of each Trust will have a principal
place of business or reside in the State of Delaware (the "Delaware Trustee").
The Company will pay all fees and expenses related to each Financing Trust and
the offering of the Trust Securities, the payment of which will be guaranteed by
the Company. The office of the Property Trustee for Financing Trust is
Wilmington Trust Company, Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration,
telephone (302) 651-8504.
Under the Preferred Securities Guarantee, the Company will guarantee the
payment of distributions and amounts on liquidation and redemption of Preferred
Securities to the extent described herein. See "The Preferred Securities
Guarantee." The Preferred Securities Guarantee, when taken together with the
Company's obligations under the Junior Subordinated Debt Securities, the Junior
Subordinated Indenture and the Declaration, including its obligations to pay
costs, expenses and certain liabilities of the Financing Trust (other than with
respect to the Trust Securities), provides a full and unconditional guarantee of
amounts due on the Preferred Securities. See "Particular Terms of Junior
Subordinated Debt Securities Issued in Connection with Preferred Securities" and
the information set forth in a Prospectus Supplement with respect to any
offering of Preferred Securities.
The principal place of business of each Financing Trust is c/o ReliaStar
Financial Corp., 20 Washington Avenue South, Minneapolis, Minnesota 55401,
telephone (612) 372-5432.
USE OF PROCEEDS
The Company intends to add the net proceeds from the sale of Offered
Securities, including the proceeds from the exchange of Junior Subordinated Debt
Securities for the net proceeds from the Trust Securities issued by Financing
Trusts, to its general funds to be used for general corporate purposes,
including the repurchase of its Common Stock, investments in or advances to
existing or future subsidiaries, repayment of maturing obligations and purchase
or redemption of outstanding indebtedness. Each Financing Trust will use all
proceeds received by the trust from the sale of its Trust Securities to purchase
Junior Subordinated Debt Securities of the Company. A more detailed description
of the use of proceeds received from the sale of specific Offered Securities
shall be set forth in the Prospectus Supplement relating thereto.
RATIOS OF EARNINGS TO FIXED CHARGES
AND TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following are the Company's consolidated ratios of earnings to fixed
charges and to combined fixed charges and preferred stock dividends for the
periods indicated.
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed changes................. 8.34 9.44 11.46 6.76 4.20
Ratio of Earnings to
Combined Fixed Changes and
Preferred Stock
Dividends..................... 7.43 7.17 7.12 4.73 3.16
</TABLE>
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<PAGE>
For purposes of calculating the ratios of earnings to fixed charges,
earnings (consisting of income from continuing operations before income taxes,
extraordinary charges and accounting changes plus fixed charges, amortization of
previously capitalized interest and adjustments for less than 50%-owned persons)
have been divided by fixed charges. For purposes of calculating the ratios of
earnings to combined fixed charges and preferred stock dividends, earnings have
been divided by fixed charges and pre-tax earnings required to cover preferred
stock dividends. Fixed charges consist of interest on short-term borrowings and
long-term debt, amortization of debt expense and discount, capitalized interest
and the interest factor of rental expense (generally deemed to be one-third of
net rental expense). Pre-tax earnings required to cover preferred stock
dividends have been calculated by dividing preferred stock dividends by one
minus the Company's effective income tax rate.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms and provisions of the
Debt Securities offered by any Prospectus Supplement and the extent, if any, to
which these general terms and provisions may apply to the Debt Securities so
offered will be described in a Prospectus Supplement relating to the Debt
Securities. See also "Particular Terms of Junior Subordinated Debt Securities
Issued in Connection with Preferred Securities."
The Senior Debt Securities are to be issued under an indenture (the "Senior
Indenture") between the Company and the trustee named in the applicable
Prospectus Supplement as trustee (the "Senior Trustee"). The Senior Subordinated
Debt Securities are to be issued under an indenture (the "Senior Subordinated
Indenture") between the Company and the trustee named in the applicable
Prospectus Supplement as trustee (the "Senior Subordinated Trustee"). The Junior
Subordinated Debt Securities are to be issued under an indenture (the "Junior
Subordinated Indenture," and together with the Senior Subordinated Indenture,
the "Subordinated Indentures") between the Company and the trustee named in the
applicable Prospectus Supplement as trustee (the "Junior Subordinated Trustee,"
and together with the Senior Trustee and the Senior Subordinated Trustee, the
"Trustees"). The forms of Senior Indenture and Subordinated Indentures
(collectively, the "Indentures") are exhibits to this Registration Statement.
The following summaries of certain provisions of the Indentures do not purport
to be complete and are qualified in their entirety by reference to the
respective provisions of the Indentures. Numerical references in parentheses
below are to sections of the Indentures. Wherever particular sections or defined
terms of the Indentures are referred to, it is intended that those sections or
defined terms shall be incorporated herein by reference. Unless otherwise
indicated, capitalized terms are defined in the Indentures.
GENERAL
The amount of Debt Securities offered by this Prospectus will be limited to
the amount set forth on the cover of this Prospectus. Each Indenture provides
that Debt Securities in an unlimited aggregate principal amount may be issued
thereunder from time to time in one or more series (Section 301).
Senior Debt Securities will be unsecured and will rank on par with all
other unsecured Debt of the Company other than Debt that by its terms is
subordinated to the Senior Debt Securities. Senior Subordinated Debt Securities
will be unsecured, except as described in a Prospectus Supplement relating
thereto, will rank on par with all other Senior Subordinated Debt Securities of
the Company, and will be subordinated to all existing and future Debt of the
Company, other than Debt evidenced by the Junior Subordinated Debt Securities
and Trust Related Securities. Junior Subordinated Debt Securities will be
8
<PAGE>
unsecured, except as described in a Prospectus Supplement relating thereto, will
rank on par with any existing or future Trust Related Securities, and will be
subordinated to all existing and future Debt of the Company. See "Subordination"
below.
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Debt Securities for the terms of the Debt Securities,
including, where applicable, (i) the designation and any limit on the aggregate
principal amount of the Debt Securities; (ii) the price (which may be expressed
as a percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (iii) the date or dates on which the Debt Securities
will mature or the method by which such dates can be determined; (iv) the
currency or currencies in which the Debt Securities are being sold and are
denominated and the circumstances, if any, under which any such Debt Securities
may be payable in a currency other than the currency in which the Debt
Securities are denominated, and, if so, the exchange rate, the exchange rate
agent and, if the Holder of any such Debt Securities may elect the currency in
which payments thereon are to be made, the manner of that election; (v) the
denominations in which any Debt Securities which are Registered Securities will
be issuable, if other than denominations of $1,000 and any integral multiple
thereof with respect to Debt Securities, and the denomination or denominations
in which any Debt Securities that are Bearer Securities will be issuable, if
other than the denomination of $5,000; (vi) the rate or rates (which may be
fixed or variable) at which the Debt Securities will bear interest, which may be
zero in the case of certain Debt Securities issued at an issue price
representing a discount from the principal amount payable at maturity; (vii) the
date from which interest on the Debt Securities will accrue, the dates on which
that interest will be payable or the method by which such dates can be
determined, the date on which payment of that interest will commence and the
circumstances, if any, in which the Company may defer interest payments; (viii)
the date or dates on which, and the price or prices at which, the Debt
Securities will, pursuant to any mandatory sinking fund provision, or may,
pursuant to any optional redemption or required repayment provisions, be
redeemed or repaid and the other terms and provisions of any such optional
redemption or required repayment; (ix) in the case of Subordinated Debt
Securities, any terms by which those securities may be convertible into
Preferred Stock, Depositary Shares or Common Stock (see "Description of Capital
Stock") and, in the case of Subordinated Debt Securities convertible into
Preferred Stock or Depositary Shares, the terms of the Preferred Stock or
Depositary Shares; (x) whether the Debt Securities are to be issuable as Bearer
Securities and/or Registered Securities and, if issuable as Bearer Securities,
the terms upon which any Bearer Securities may be exchanged for Registered
Securities; (xi) whether the Debt Securities are to be issued in the form of one
or more temporary or permanent Global Securities and, if so, the identity of the
depositary for that Global Security or Securities; (xii) if a temporary Global
Security is to be issued with respect to the Debt Securities, the extent to
which, and the manner in which, any interest thereon payable on an interest
payment date prior to the issuance of a permanent Global Security or definitive
Bearer Securities will be credited to the accounts of the persons entitled
thereto on that interest payment date; (xiii) if a temporary Global Security is
to be issued with respect to the Debt Securities, the terms upon which interests
in such temporary Global Security may be exchanged for interests in a permanent
Global Security or for definitive Debt Securities and the terms upon which
interests in a permanent Global Security, if any, may be exchanged for
definitive Debt Securities; (xiv) any additional restrictive covenants included
for the benefit of Holders of such Debt Securities; (xv) any additional Events
of Default provided with respect to such Debt Securities; (xvi) information with
respect to book-entry procedures, if any; (xvii) whether the Debt Securities
will be repayable at the option of the Holder; (xviii) any other terms of the
Debt Securities not inconsistent with the provisions of the applicable
Indenture; (xix) the right of the Company to defease such Debt Securities or
certain covenants under the applicable Indenture; and (xx) the terms of any
securities being offered together with or separately from the Debt Securities.
The Prospectus Supplement will also describe any special provisions for the
payment of additional amounts with respect to the Debt Securities and certain
United States federal income tax consequences and other special considerations
applicable to the Debt Securities. If a Debt Security is
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<PAGE>
denominated in a foreign currency, the Debt Security may not trade on a United
States national securities exchange unless and until the Commission has approved
appropriate rule changes to accommodate the such trading.
Because the Company is primarily a holding company, its rights and the
rights of its creditors, including the Holders of Debt Securities, to
participate in the assets of any Subsidiary (as defined below) upon its
liquidation or recapitalization would be subject to the prior claims of the
Subsidiary's creditors (including policyholders of the Company's insurance
company Subsidiaries), provided that, in certain instances, the Company may
itself be a creditor with recognized claims against the Subsidiary. There is no
restriction in the Indentures against Subsidiaries of the Company incurring
unsecured indebtedness or issuing unsecured securities. The ability of the
Company to pay principal of and interest on Debt Securities will be dependent
upon the payment to it of dividends, interest payments on the Surplus Note
(referred to below) or other charges by the Subsidiaries. The payment of
dividends, interest or other charges by ReliaStar Life, and other insurance
company Subsidiaries, is subject to legal restrictions, primarily imposed by
applicable insurance laws and regulations. See "Description of Capital Stock --
Dividends."
The Company holds a surplus note issued by ReliaStar Life in the amount of
$100 million (the "Surplus Note"). Interest on the Surplus Note at the annual
rate of 6 5/8% is payable semi-annually. The Surplus Note matures in September
2003. The terms of the Surplus Note provide that ReliaStar Life must secure the
approval of the Commissioner of the Minnesota Department of Commerce (the
"Commissioner") prior to making any payments of principal or interest. The
requirement for prior regulatory approval of such payments is a condition for
the Surplus Note to be considered "surplus" for statutory accounting purposes.
The Company is not aware of any basis for the Commissioner to disapprove any
scheduled interest payment under the Surplus Note.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities, other than Bearer Securities in temporary or
permanent global form, will have interest coupons attached (Section 201). Each
Indenture also provides that Bearer Securities or Registered Securities of a
series may be issuable in permanent global form (Section 203). See "Permanent
Global Securities" below.
Registered Securities of any series will be exchangeable for other
Registered Securities of such series of any authorized form and denomination and
of a like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of that series will be exchangeable into Registered Securities of such series of
any authorized form and denomination and of a like aggregate principal amount,
tenor and terms. Bearer Securities surrendered in exchange for Registered
Securities between the close of business on a Regular Record Date or a Special
Record Date and the relevant date for payment of interest shall be surrendered
without the coupon relating to that date for payment of interest, and interest
will not be payable in respect of the Registered Security issued in exchange for
that Bearer Security, but will be payable only to the Holder of the coupon when
due in accordance with the terms of the applicable Indenture. Bearer Securities
will not be issued in exchange for Registered Securities (Section 305). Each
Bearer Security, other than one in temporary global form, and each interest
coupon will bear substantially the following legend: "Any United States Person
who holds this obligation will be subject to limitations under the United States
federal income
10
<PAGE>
tax laws including the limitations provided in Sections 165(j) and 1287(a) of
the Internal Revenue Code." Additional information regarding restrictions on the
issuance, exchange and transfer of and special United States federal income tax
considerations relating to Bearer Securities will be set forth in the applicable
Prospectus Supplement.
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer) at the
office of the Security Registrar or at the office of any transfer agent
designated by the Company for that purpose, without service charge and upon
payment of any taxes and other governmental charges (Section 305). If the
applicable Prospectus Supplement refers to any transfer agent (in addition to
the Security Registrar) initially designated by the Company with respect to any
series of Debt Securities, the Company may at any time rescind the designation
of any such transfer agent or approve a change in the location through which any
such transfer agent (or Security Registrar) acts, except that, if Debt
Securities of a series are issuable solely as Registered Securities, the Company
will be required to maintain a transfer agent in each Place of Payment for that
series and, if Debt Securities of a series are issuable as Bearer Securities,
the Company will be required to maintain (in addition to the Security Registrar)
a transfer agent in a Place of Payment for that series located outside the
United States. The Company may at any time designate additional transfer agents
with respect to any series of Debt Securities (Section 1002).
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities
initially will be represented by one or more temporary Global Securities,
without interest coupons, to be deposited with a common depositary for the
benefit of the Euroclear System and Cedel S.A. for credit to designated
accounts. On and after the date determined as provided in any such temporary
Global Security and described in the applicable Prospectus Supplement, but
within a reasonable time, each such temporary Global Security will be
exchangeable for definitive Bearer Securities, definitive Registered Securities
or all or a portion of a permanent global Bearer Security, or any combination
thereof, as specified in the Prospectus Supplement. No definitive Bearer
Security or permanent global Bearer Security delivered in exchange for a portion
of a temporary Global Security shall be mailed or otherwise delivered to any
location in the United States in connection with such exchange.
Additional information regarding restrictions on and special United States
federal income tax consequences relating to temporary Global Securities will be
set forth in the applicable Prospectus Supplement.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent Global Security
may exchange those interests for Debt Securities of such series of any
authorized form and denomination and of a like aggregate principal amount, tenor
and terms. Principal of and any premium and interest on a permanent Global
Security will be payable in the manner described in the Prospectus Supplement
relating thereto.
PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement,
payments of principal of and any premium and interest on Bearer Securities will
be payable in the currency designated in the Prospectus
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<PAGE>
Supplement, subject to any applicable laws and regulations, at such paying
agencies outside the United States as the Company may designate from time to
time. Unless otherwise provided in the Prospectus Supplement, these payments may
be made, at the option of the Holder, by a check in the designated currency or
by transfer to an account in the designated currency maintained by the payee
with a bank located outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest on Bearer Securities on
any Interest Payment Date will be made only against surrender of the coupon
relating to that Interest Payment Date to a paying agent outside the United
States (Section 1001). No payment with respect to any Bearer Security will be
made at any office or paying agency maintained by the Company in the United
States nor will any such payment be made by transfer to an account, or by mail
to an address, in the United States. Notwithstanding the foregoing, payments of
principal of and any premium and interest on Bearer Securities denominated and
payable in U.S. dollars will be made in U.S. dollars at an office or agency of,
and designated by, the Company located in the United States, if payment of the
full amount thereof in U.S. dollars at all paying agencies outside the United
States is illegal or effectively precluded by exchange controls or other similar
restrictions, and the applicable Trustee receives an opinion of counsel that
such payment within the United States is legal (Section 1002).
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and any premium and interest on a Registered Security will be
payable in the currency designated in the Prospectus Supplement, and interest
will be payable at the office of such paying agent or paying agents as the
Company may designate from time to time, except that at the option of the
Company payment of any interest may be made by a check in such currency mailed
to the Holder at the Holder's registered address or by wire transfer to an
account in such currency designated by the Holder in writing not less than ten
days prior to the date of the payment. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of any installment of interest on a
Registered Security will be made to the Person in whose name such Registered
Security is registered at the close of business on a Regular Record Date or a
Special Record Date for the payment (Section 307). Unless otherwise indicated in
the applicable Prospectus Supplement, principal payable at maturity will be paid
to the Holder upon surrender of the Registered Security at the office of a duly
designated paying agent.
The paying agents outside the United States initially designated by the
Company for a series of Debt Securities will be named in the applicable
Prospectus Supplement. The Company may terminate the designation of any of the
paying agents from time to time, except that, so long as any Bearer Securities
are outstanding, the Company will maintain at least one paying agent outside the
United States where Bearer Securities may be presented for payment and may be
surrendered for exchange, provided that, so long as any Debt Securities of a
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or 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 in London or Luxembourg or any other required city
located outside the United States, as the case may be, for Debt Securities of
such series (Section 1002).
All moneys paid by the Company to a paying agent for the payment of
principal of or any premium or interest on any Debt Security that remain
unclaimed at the end of two years after that principal, premium or interest
shall have become due and payable will, at the request of the Company, be repaid
to the Company, and the Holder of that Debt Security or any coupon appertaining
thereto will thereafter look only to the Company for payment thereof (Section
1003).
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COVENANTS CONTAINED IN INDENTURES
The Company has covenanted in the Senior Indenture that it will not, and
will not permit any Restricted Subsidiary (as defined herein) to, create, incur,
issue, assume or guarantee any indebtedness for borrowed money ("indebtedness")
that is secured by a mortgage, pledge, lien or security interest (a "Lien") of
or upon any shares of capital stock or indebtedness of any Restricted Subsidiary
or any indebtedness of any Restricted Subsidiary owned by the Company or any
Subsidiary, whether existing or issued on September 30, 1994 or thereafter
created or issued, without effectively providing that any Debt Securities issued
under the Senior Indenture (together with, if the Company shall so determine,
any other indebtedness created, incurred, issued, assumed or guaranteed by the
Company or any Restricted Subsidiary then existing or thereafter created) shall
be secured equally and ratably with (or, at the option of the Company, prior to)
such indebtedness, so long as such indebtedness shall be so secured. The
foregoing restrictions, however, shall not apply to: (i) Liens of or upon any
indebtedness or shares of capital stock acquired by the Company or any
Restricted Subsidiary after September 30, 1994 to secure the payment of all or
part of the purchase price of such shares of capital stock or indebtedness upon
the acquisition thereof by the Company or any Restricted Subsidiary; (ii) Liens
of or upon any indebtedness or shares of capital stock existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary; (iii) Liens of
or upon indebtedness or shares of capital stock of any Person existing at the
time that Person became a Restricted Subsidiary; (iv) Liens to secure
indebtedness of any Restricted Subsidiary to the Company or any Restricted
Subsidiary; and (v) under certain circumstances, extensions, renewals or
replacements of any Liens existing on September 30, 1994 or any Lien referred to
in the foregoing clauses (i) through (iv), inclusive (Section 1007 of the Senior
Indenture).
The term "Restricted Subsidiary" means: (i) so long as they are
Subsidiaries of the Company, ReliaStar Life and Northern Life Insurance Company;
(ii) any other company, so long as it is a Subsidiary of the Company, which is a
Subsidiary and which has Consolidated Total Assets equal to or greater than 20%
of the Consolidated Total Assets of the Company (as of the date hereof,
Reliastar United Services Life Insurance Company is the only such subsidiary);
and (iii) any successor, by merger or otherwise, to all or a principal part (as
determined in good faith by the Company's Board of Directors or an appropriate
committee thereof) of the business or properties of any Subsidiary referred to
or described in the foregoing clauses (i) or (ii).
The term "Consolidated Total Assets" means, in respect of the Company as of
any date of determination, the amount of total assets shown on the consolidated
balance sheet of the Company and its consolidated subsidiaries contained in the
most recent annual report to shareholders and, in respect of any Subsidiary as
of any date of determination, the amount of total assets of the Subsidiary and
its consolidated subsidiaries from which such consolidated balance sheet of the
Company and its consolidated subsidiaries was derived.
The term "Subsidiary" means any company more than 50% of the outstanding
voting stock of which is at the time owned, directly or indirectly, by the
Company and/or one or more of its other Subsidiaries (Section 101).
The Company also has covenanted in the Senior Indenture that, so long as
any Debt Securities of any series shall be Outstanding, the Company will not,
nor will it permit any Restricted Subsidiary to, issue, sell, transfer or
otherwise dispose of (except to the Company or to another Restricted Subsidiary)
any shares of capital stock of any Restricted Subsidiary, unless (i) such shares
so issued, sold, transferred or otherwise disposed of constitute directors'
qualifying shares; (ii) the entire outstanding capital stock of that Restricted
Subsidiary then owned by the Company and its Restricted Subsidiaries is disposed
of at the same time for a
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<PAGE>
consideration, whether in cash or property, which, in the opinion of the
Company's Board of Directors or an appropriate committee thereof, is at least
equal to the fair value of such capital stock; or (iii) after giving effect to
such issuance, sale, transfer or other disposition, the Company and its
Restricted Subsidiaries would own, directly or indirectly, at least 80% of the
issued and outstanding capital stock of that Restricted Subsidiary (Section 1008
of the Senior Indenture).
The Company is not restricted by the Indentures from incurring, assuming or
becoming liable for any type of debt or other obligations, or, except as
specified above, from creating liens on its property for any purpose or from
paying dividends or making distributions on its capital stock or purchasing or
redeeming its capital stock, or, except as described under "Consolidation,
Merger and Sale of Assets" below, from engaging in corporate transactions or
reorganizations that could result in the Company's involvement in a highly
leveraged transaction. The Indentures do not require the maintenance of any
financial ratios or specified levels of net worth or liquidity. In addition, the
Indentures do not contain any provision that would require the Company to
repurchase or redeem or otherwise modify the terms of any of its Debt Securities
upon a change in control or other events involving the Company that may
adversely affect the creditworthiness of the Debt Securities.
The applicable Prospectus Supplement may describe other covenants. See also
"Particular Terms of Junior Subordinated Debt Securities Issued in Connection
with Preferred Securities."
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into, or convey,
transfer or lease its assets substantially as an entirety to, any Person unless
the successor Person is a corporation organized and validly existing under the
laws of a domestic jurisdiction and expressly assumes the Company's obligations
on the Debt Securities and under the applicable Indenture; after giving effect
to the transaction no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing; and, in the case of the Senior Indenture, if, upon or as a
result of any such consolidation, merger, conveyance, transfer or lease, any
shares of capital stock or indebtedness of any Restricted Subsidiary would
thereupon become subject to any mortgage, security interest, pledge or lien
securing any indebtedness for borrowed money of, or guaranteed by, such Person
(other than any mortgage, security interest, pledge or lien permitted by the
Senior Indenture), the successor Person, prior to such consolidation, merger,
conveyance, transfer or lease, shall expressly assume the Company's obligations
on the Debt Securities and under the Senior Indenture (together with, if the
Company shall so determine, any other indebtedness of, or guaranteed by, the
Company or any Restricted Subsidiary ranking equally with the Debt Securities
and then existing or thereafter created) equally and ratably with (or, at the
option of the Company, prior to) the indebtedness secured by such mortgage,
security interest, pledge or lien (Section 801).
MODIFICATION AND WAIVER
Unless otherwise stated in the applicable Prospectus Supplement, except as
to certain modifications and amendments not adverse to Holders of Debt
Securities, modifications and amendments of and waivers of compliance with
certain restrictive provisions under each Indenture may be made only with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of each series thereunder affected by that
modification, amendment or waiver; provided that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security or coupon affected thereby, (i) change the Stated Maturity of the
principal or any installment of principal or any installment of interest, if
any; (ii) reduce the amount of principal or interest thereon, or any premium
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<PAGE>
payable upon redemption or repayment thereof, or in the case of an Original
Issue Discount Security the amount of principal payable upon acceleration of the
Maturity thereof; (iii) change the Place of Payment or the currency in which
principal or any interest is payable; (iv) impair the right to institute suit
for the enforcement of any payment of the principal and any premium and
interest, or adversely affect the right of any repayment at the option of the
Holder; (v) reduce the percentage in principal amount of Outstanding Debt
Securities of any series the consent of whose Holders is required for
modification or amendment of the applicable Indenture or for waiver of
compliance with certain provisions of the applicable Indenture or for waiver of
certain defaults; (vi) reduce the requirements contained in the applicable
Indenture for quorum or voting; (vii) in the case of Subordinated Debt
Securities convertible into Common Stock, impair any right to convert those
Subordinated Debt Securities; or (viii) modify any of the above provisions
(Section 902).
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of such series
are issuable in whole or in part as Bearer Securities (Section 1401). A meeting
may be called at any time by the Trustee for the Debt Securities, or upon the
request of the Company or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, in any such case upon notice given
in accordance with the applicable Indenture (Section 1402). Except as limited by
the proviso in the preceding paragraph, any resolution presented at a meeting or
adjourned meeting at which a quorum is present may be adopted by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding Debt
Securities of a series; provided, that, except as limited by the proviso in the
preceding paragraph, any resolution with respect to any demand, consent, waiver
or other action which may be made, given or taken by the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of a
series issued under an Indenture may be adopted at a meeting or an adjourned
meeting at which a quorum is present only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series; and provided further, that, except as limited by the proviso in the
preceding paragraph, any resolution with respect to any demand, consent, waiver
or other action which may be made, given or taken by the Holders of a specified
percentage that is less than a majority in principal amount of the Outstanding
Debt Securities of a series issued under an Indenture may be adopted at a
meeting or adjourned meeting at which a quorum is present by the affirmative
vote of the Holders of such specified percentage in principal amount of the
Outstanding Debt Securities of such series (Section 1404).
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of a series duly held in accordance with the applicable Indenture
will be binding on all Holders of Debt Securities of that series and the related
coupons issued under such Indenture. The quorum at any meeting of Holders of a
series of Debt Securities called to adopt a resolution, and at any adjourned
meeting, will be persons holding or representing a majority in principal amount
of the Outstanding Debt Securities of such series (Section 1404).
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of a series may on behalf of the Holders of all Debt Securities
of that series waive (insofar as that series is concerned) compliance by the
Company with certain restrictive covenants of the Indenture under certain
circumstances. Unless otherwise stated in the applicable Prospectus Supplement,
the Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive any past default under the Indenture with
respect to that series, except a default in the payment of the principal of or
premium, if any, or any interest on any Debt Security of that series or in
respect of a provision which under the Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of the
series affected (Sections 513 and 1005).
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EVENTS OF DEFAULT
Unless otherwise stated in the applicable Prospectus Supplement, any series
of Senior Debt Securities issued under the Senior Indenture will provide that
the following shall constitute Events of Default with respect to such series:
(i) default in payment of principal of or premium, if any, on any Senior Debt
Security of such series when due; (ii) default for 30 days in payment of
interest, if any, on any Senior Debt Security of such series or related coupon,
if any, when due; (iii) default in the deposit of any sinking fund payment on
any Senior Debt Security of such series when due; (iv) default in the
performance of any covenants in such Indenture continued for 90 days after
written notice thereof by the Trustee thereunder or the Holders of at least 25%
in principal amount of the Outstanding Senior Debt Securities of such series
issued under such Indenture; (v) certain events of bankruptcy, insolvency or
reorganization of the Company; and (vi) default by the Company or any Restricted
Subsidiary in the payment of any amount due under other indebtedness of the
Company or any Restricted Subsidiary for money borrowed having unpaid principal
in excess of $20,000,000 or under any indenture or other instrument under which
any such indebtedness has been issued or by which it is governed, whether now
existing or hereafter created, which default shall have resulted in the
acceleration of the maturity thereof without such acceleration having been
rescinded after due notice to the Company of such default by the Trustee or by
such notice to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of such series; provided,
however, that for purposes of this clause (vi) no Event of Default shall be
deemed to have occurred with respect to Senior Debt Securities of any series if
(a) such default in the payment of any amount due or under any such indenture or
other instrument relates solely to indebtedness that has been issued, assumed or
guaranteed on terms which provide that the creditor with respect thereto shall
have no recourse of any nature whatsoever to the whole of the property and
assets or any portion thereof (other than the property specifically pledged to
secure such indebtedness) of the Company and any Restricted Subsidiary in the
event of any such default, (b) in the opinion of the Board of Directors (or an
appropriate committee thereof) of the Company or such Restricted Subsidiary, as
the case may be, which shall have issued, assumed or guaranteed such
indebtedness, such default, the acceleration of the maturity of such
indebtedness and the enforcement by such creditor of all of its other rights and
remedies as a result of such default and acceleration of indebtedness shall not
adversely affect the financial condition of the Company or such Restricted
Subsidiary, as the case may be, and (c) in the opinion of the Company's Board of
Directors (or an appropriate committee thereof) such default and the
acceleration of such indebtedness do not adversely affect the interest of the
Holders of any series of Senior Debt Securities (Section 501 of the Senior
Indenture).
Unless otherwise stated in the applicable Prospectus Supplement, any series
of Subordinated Debt Securities issued under the Subordinated Indentures will
provide that the only Events of Default will be (i) default in payment of
principal of or premium, if any, on any Subordinated Debt Security of such
series when due; (ii) default for 30 days in payment of interest, if any, on any
Subordinated Debt Security of such series or related coupon, if any, when due;
(iii) failure to convert any Subordinated Debt Security into Common Stock upon
the election of a Holder to convert such Subordinated Debt Security if the terms
of such Subordinated Debt Security provide for conversion; and (iv) certain
events of bankruptcy of the Company (Section 501 of the Subordinated
Indentures). Unless specifically stated in the applicable Prospectus Supplement
for a particular series of Subordinated Debt Securities, there is no right of
acceleration of the payment of principal of the Subordinated Debt Securities
upon a default in the payment of principal, premium, if any, or interest, if
any, or in the performance of any covenant or agreement in the Subordinated Debt
Securities or Subordinated Indentures. In the event of a default in the payment
of principal, premium, if any, or interest, if any, or the performance of any
covenant or agreement in the Subordinated Debt Securities or Subordinated
Indentures, the Trustee, subject to certain limitations and conditions, may
institute judicial proceedings to enforce payment of such principal, premium or
interest or
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to obtain the performance of such covenant or agreement or any other proper
remedy (Section 503 of the Subordinated Indentures).
The Company is required to file annually with each Trustee an Officers'
Certificate concerning the absence of certain defaults under the terms of the
Indentures (Section 1004). Each Indenture provides that if an Event of Default
specified therein shall occur and be continuing, either the Trustee thereunder
or the Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series issued under such Indenture may declare the principal
of all such Debt Securities (or in the case of Original Issue Discount
Securities, such portion of the principal amount thereof as may be specified in
the terms thereof) to be due and payable (Section 502). In certain cases, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
a series may, on behalf of the Holders of all Senior Debt Securities of such
series and any related coupons, waive any past default or Event of Default,
except a default (i) in payment of the principal of or premium, if any, or
interest, if any, on any of the Debt Securities of such series and (ii) in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
such series or coupon affected (Section 513).
Each Indenture contains a provision entitling the Trustee thereunder,
subject to the duty of the Trustee during default to act with the required
standard of care, to be indemnified by the Holders of the Debt Securities of a
series thereunder or any related coupons before proceeding to exercise any right
or power under the Indenture with respect to such series at the request of such
Holders. (Section 603) Each Indenture provides that no Holder of any Debt
Securities of a series thereunder or any related coupons may institute any
proceeding, judicial or otherwise, to enforce the Indenture except in the case
of failure of the Trustee thereunder, for 60 days, to act after it is given
notice of default, a request to enforce such Indenture by the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of such series and an offer of reasonable indemnity (Section 507). This
provision will not prevent any Holder of Debt Securities or any related coupons
from enforcing payment of the principal thereof and premium, if any, and
interest, if any, thereon at the respective due dates thereof (Section 508). The
Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series issued under an Indenture may direct the time, method
and place of conducting any proceedings for any remedy available to the Trustee
for such Debt Securities or exercising any trust or power conferred on it with
respect to the Debt Securities of such series. However, such Trustee may refuse
to follow any direction that conflicts with law or the Indenture under which it
serves or which would be unjustly prejudicial to Holders not joining therein
(Section 512).
Each Indenture provides that the Trustee thereunder will give to the
Holders of Debt Securities notice of a default if not cured or waived, but,
except in the case of a default in the payment of principal of or premium, if
any, or interest, if any, on any Debt Securities of such series or any related
coupons or in the payment of any sinking fund installment with respect to Debt
Securities of such series, the Trustee for such Debt Securities shall be
protected in withholding such notice if it determines in good faith that the
withholding of such notice is in the interest of the Holders of such Debt
Securities (Section 602).
DEFEASANCE AND DISCHARGE
Except for Junior Subordinated Debt Securities issued in connection with
Preferred Securities, the Company may be discharged from any and all obligations
in respect of the Debt Securities of a series (except for certain obligations
relating to temporary Debt Securities and exchange of Debt Securities,
registration of transfer or exchange of Debt Securities of such series,
replacement of stolen, lost or mutilated Debt Securities of such series,
maintenance of paying agencies, holding monies for payment in trust and payment
of additional amounts, if any, required in consequence of United States
withholding taxes imposed
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on payments to non-U.S. persons) upon the deposit with the Trustee, in trust, of
money and/or, to the extent such Debt Securities are denominated and payable in
U.S. dollars only, Eligible Instruments that, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and premium, if any, each
installment of interest, if any, on, and any mandatory sinking fund, repayment
or analogous payments on, the Debt Securities of such series on the scheduled
due dates therefor or upon redemption (if the Debt Securities of such series are
subject to redemption and the Company shall have given irrevocable instructions
to the Trustee to effect such redemption) in accordance with the terms of the
applicable Indenture and the Debt Securities of such series. Such a trust may be
established only if, among other things, (i) the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (a) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(b) since the date of the applicable Indenture there has been a change in
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and discharge, and
will be subject to federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred; and (ii) the Debt Securities of such series, if
then listed on any domestic or foreign securities exchange, will not be delisted
as a result of such deposit, defeasance and discharge (Section 403). In the
event of any such defeasance and discharge of Debt Securities of such series,
Holders of Debt Securities of such series would be able to look only to such
trust fund for payment of principal of and any premium and interest on their
Debt Securities until Maturity.
Except for Junior Subordinated Debt Securities issued in connection with
Preferred Securities, the Company may terminate certain of its obligations under
each Indenture with respect to the Debt Securities of a series thereunder,
including its obligations to comply with the covenants described above under
"Covenants Contained in Indentures," with respect to Debt Securities of such
series, on the terms and subject to the conditions contained in such Indenture,
by depositing in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in U.S. dollars only, Eligible
Instruments that, through the payment of principal and interest in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and premium, if any, each installment of
interest, if any, on, and any mandatory sinking fund, repayment or analogous
payments on, the Debt Securities of such series on the scheduled due dates
therefor. This deposit and termination is conditioned, among other things, upon
the Company's delivery of an Opinion of Counsel that the Holders of such Debt
Securities will have no federal income tax consequences as a result of the
deposit and termination. Termination will not relieve the Company of its
obligation to pay when due the principal of or any interest on such Debt
Securities if such Debt Securities of such series are not paid from the money or
Eligible Instruments held by the Trustee for the payment thereof (Section 1501).
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting or restricting such defeasance with respect to Debt Securities
of a series. In the event the Company exercises its option to omit compliance
with the covenants described above under "Covenants Contained in Indentures"
with respect to the Debt Securities of a series as described above and the Debt
Securities of such series are declared due and payable because of the occurrence
of an Event of Default, then the amount of money and Eligible Instruments on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of the scheduled due dates therefor but
may not be sufficient to pay amounts due on the Debt Securities of such series
at the time of the acceleration resulting from such Event of Default. The
Company shall in any event remain liable for such payments as provided in the
applicable Indenture.
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SUBORDINATION
The Senior Subordinated Debt Securities shall be subordinate to all
existing and future Debt of the Company other than Debt evidenced by the Junior
Subordinated Debt Securities and the Trust Related Securities. The Junior
Subordinated Debt Securities shall rank on par with any Trust Related Securities
and shall be subordinate to all existing and future Debt of the Company other
than the Trust Related Securities. In the event that the Company shall default
in the payment of any principal, premium, if any, or interest, if any, on any
Debt to which the Senior Subordinated Debt Securities or the Junior Subordinated
Debt Securities are subordinated when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration of acceleration
or otherwise, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Senior
Subordinated Debt Securities or the Junior Subordinated Debt Securities, as the
case may be, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Senior Subordinated Debt Securities or the
Junior Subordinated Debt Securities, as the case may be (Section 1601 of the
Subordinated Indentures). "Debt" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (a) indebtedness of the
Company for money borrowed; (b) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company; (ii) all
capital lease obligations of the Company; (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type referred
to in clauses (i) through (iv) of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise; and (vi)
all obligations of the type referred to in clauses (i) through (v) of other
Persons secured by any lien on any property or asset of the Company (whether or
not such obligation is assumed by the Company) (Section 101 of the Subordinated
Indentures). As of December 31, 1996, the Company had approximately $407.5
million of Debt outstanding to which the Subordinated Debt Securities would be
subordinated. The term "Senior Debt" means a Debt to which the Senior
Subordinated Debt Securities or the Junior Subordinated Debt Securities, as the
case may be, are subordinated.
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 Debt (including any
interest thereon accruing after the commencement of any such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made on account of the principal of or
interest on the Junior Subordinated Debt Securities. In such event, any payment
or distribution on account of the principal of or interest on the Senior
Subordinated Debt Securities or Junior Subordinated Debt Securities, as the case
may be, whether in cash, securities or other property (other than securities of
the Company or any other company provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to such Subordinated Debt
Securities, to the payment of all Senior Debt at the time outstanding, and to
any securities issued in respect thereof under any such plan of reorganization
or readjustment), which would otherwise (but for the subordination provisions)
be payable or deliverable in respect of such Subordinated Debt Securities shall
be paid or delivered directly to the holders of Senior Debt in accordance with
the priorities then existing among such holders until all Senior Debt
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(including any interest thereon accruing after the commencement of any such
proceedings) shall have been paid in full (Section 1601 of the Subordinated
Indentures).
In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Debt, the Holders of Senior Subordinated Debt
Securities or Junior Subordinated Debt Securities, as the case may be, together
with the holders of any obligations of the Company ranking on par with Senior
Subordinated Debt Securities or Junior Subordinated Debt Securities, as the case
may be, shall be entitled to be repaid from the remaining assets of the Company
the amounts at the time due and owing on account of unpaid principal, premium,
if any, and interest, if any, on such Subordinated Debt Securities and such
other obligations before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital stock or
obligations of the Company ranking junior to such Subordinated Debt Securities
and such other obligations. If any payment or distribution on account of the
principal of or interest on the Senior Subordinated Debt Securities or Junior
Subordinated Debt Securities, as the case may be, of any character or any
security, whether in cash, securities or other property (other than securities
of the Company or any other company provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to such Subordinated Debt
Securities, to the payment of all Senior Debt at the time outstanding and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment) shall be received by any Holder of any such Subordinated Debt
Securities in contravention of any of the terms of applicable Subordinated
Indenture and before all the Senior Debt shall have been paid in full, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Debt at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior Debt
remaining unpaid to the extent necessary to pay all such Senior Debt in full
(Section 1601 of the Subordinated Indentures). By reason of such subordination,
in the event of the insolvency of the Company, holders of Senior Debt may
receive more, ratably, and holders of the Subordinated Debt Securities having a
claim pursuant to such securities may receive less, ratably, than the other
creditors of the Company. Such subordination will not prevent the occurrence of
any Event of Default in respect of the Subordinated Debt Securities.
The Subordinated Indentures may be modified or amended as provided under
"Modification and Waiver" above, provided that no such modification or amendment
may, without the consent of the holders of all Senior Debt outstanding, modify
any of the provisions of the Subordinated Indentures relating to the
subordination of the Subordinated Debt Securities and any related coupons in a
manner adverse to such holders (Section 902 of the Subordinated Indentures).
CONVERSION OF SUBORDINATED CONVERTIBLE SECURITIES
The Holders of Subordinated Debt Securities of a specified series that are
convertible into Preferred Stock, Depositary Shares or Common Stock of the
Company ("Subordinated Convertible Securities") will be entitled at certain
times specified in the applicable Prospectus Supplement, subject to prior
redemption, repayment or repurchase, to convert any Subordinated Convertible
Securities of such series (in denominations set forth in the Prospectus
Supplement) into Preferred Stock, Depositary Shares or Common Stock, as the case
may be, at the conversion price set forth in the applicable Prospectus
Supplement, subject to adjustment as described below and in the Prospectus
Supplement. Except as described below, no adjustment will be made on conversion
of any Subordinated Convertible Securities for interest accrued thereon or for
dividends on any Preferred Stock, Depositary Shares or Common Stock issued on
such conversion (Section 1703 of the Subordinated Indentures). If any
Subordinated Convertible Securities not called for redemption or submitted for
repayment are converted between a Regular Record Date for the payment of
interest and the next succeeding Interest Payment Date, such Subordinated
Convertible
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Securities must be accompanied by funds equal to the interest
payable on such succeeding Interest Payment Date on the principal amount so
converted (Section 1703 of the Subordinated Indentures). The Company is not
required to issue fractional shares of Common Stock upon conversion of
Subordinated Convertible Securities that are convertible into Common Stock and,
in lieu thereof, will pay a cash adjustment based upon the Closing Price (as
defined in the Subordinated Indentures) of the Common Stock on the last business
day prior to the date of conversion (Section 1704 of the Subordinated
Indentures). In the case of Subordinated Convertible Securities called for
redemption or submitted for repayment, conversion rights will expire at the
close of business on the redemption date or repayment date, as the case may be
(Section 1702 of the Subordinated Indentures).
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion price for Subordinated Convertible Securities that are convertible
into Common Stock is subject to adjustment under formulas set forth in the
Subordinated Indentures in certain events, including (i) the issuance of capital
stock as a dividend or distribution on the Common Stock; (ii) subdivisions and
combinations of the Common Stock; (iii) the issuance to all holders of Common
Stock of certain rights or warrants entitling them to subscribe for or purchase
Common Stock within 45 days after the date fixed for the determination of the
shareholders entitled to receive such rights or warrants, at less than the
current market price (as defined in the Subordinated Indentures); and (iv) the
distribution to all holders of Common Stock of evidences of indebtedness or
assets of the Company (excluding certain cash dividends and distributions
described in the next paragraph) or rights or warrants (excluding those referred
to above) (Section 1706 of the Subordinated Indentures). In the event that the
Company shall distribute any rights or warrants to acquire capital stock
("Capital Stock Rights") pursuant to which separate certificates representing
such Capital Stock Rights will be distributed subsequent to the initial
distribution of such Capital Stock Rights (whether or not such distribution
shall have occurred prior to the date of the issuance of a series of
Subordinated Convertible Securities), such subsequent distribution shall be
deemed to be the distribution of such Capital Stock Rights; provided that the
Company may, in lieu of making any adjustment in the conversion price upon a
distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each Holder of such a Subordinated Convertible
Security who converts such Subordinated Convertible Security (or any portion
thereof) (a) before the record date for such distribution of separate
certificates shall be entitled to receive upon such conversion shares of Common
Stock issued with Capital Stock Rights and (b) after such record date and prior
to the expiration, redemption or termination of such Capital Stock Rights shall
be entitled to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion, the same number of such Capital Stock
Rights as would a holder of the number of shares of Common Stock that such
Subordinated Convertible Security so converted would have entitled the holder
thereof to acquire in accordance with the terms and provisions applicable to the
Capital Stock Rights if such Subordinated Convertible Security were converted
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Company or any majority owned subsidiary shall
not be deemed outstanding for the purpose of any adjustment.
No adjustment in the conversion price of Subordinated Convertible
Securities that are convertible into Common Stock will be made for regular
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the conversion price then in effect; provided that any such
adjustment not so made will be carried forward and taken into account in any
subsequent adjustment; and provided further that any such adjustment not so made
shall be made no later than three years after the occurrence of the event
requiring such adjustment to be made or carried forward. Notwithstanding any of
the foregoing, the issuance of Common Stock under the Company's Dividend
Reinvestment and Optional Cash Payment Plan (the "DRIP") shall not require an
adjustment in the conversion price of Subordinated Convertible Securities that
are convertible into Common Stock. The
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Company reserves the right to make such reductions in the conversion price in
addition to those required in the foregoing provisions as the Company in its
discretion shall determine to be advisable in order that certain stock-related
distributions thereafter made by the Company to its shareholders shall not be
taxable (Section 1706 of the Subordinated Indentures). Except as stated above,
the conversion price will not be adjusted for the issuance of Common Stock or
any securities convertible into or exchangeable for Common Stock, or securities
carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Company, or (iii) a sale or conveyance to
another corporation of the property and assets of the Company as an entirety or
substantially as an entirety, in each case as a result of which holders of
Common Stock will be entitled to receive stock, securities, other property or
assets (including cash) in respect of, or in exchange for, such Common Stock,
the Holders of the Subordinated Convertible Securities then outstanding that are
convertible into Common Stock will be entitled thereafter to convert such
Subordinated Convertible Securities into the kind and amount of shares of stock
and other securities or property which they would have received upon such
reclassification, change, consolidation, merger, sale or conveyance had such
Subordinated Convertible Securities been converted into Common Stock immediately
prior to such reclassification, change, consolidation, merger, sale or
conveyance (Section 1707 of the Subordinated Indentures).
In the event of a taxable distribution to holders of Common Stock (or other
transaction) which results in any adjustment of the conversion price of
Subordinated Convertible Securities that are convertible into Common Stock, the
Holders of such Subordinated Convertible Securities may, in certain
circumstances, be deemed to have received a distribution subject to United
States federal income tax as a dividend; in certain other circumstances, the
absence of such an adjustment may result in a taxable dividend to the holders of
Common Stock or such Subordinated Convertible Securities.
PARTICULAR TERMS OF JUNIOR SUBORDINATED DEBT SECURITIES
ISSUED IN CONNECTION WITH PREFERRED SECURITIES
The statements under this caption are brief summaries of certain provisions
of the Junior Subordinated Indenture that will be applicable to Junior
Subordinated Debt Securities issued in connection with Preferred Securities
(unless otherwise provided in the Prospectus Supplement relating to such
Preferred Securities) and do not purport to be complete and are qualified in
their entirety by reference to the Junior Subordinated Indenture.
The distribution rate and the distribution payment dates and other payment
dates for the Preferred Securities will correspond to the interest rate and
interest payment dates and other payment dates on the Junior Subordinated Debt
Securities, which will be the sole assets of the Financing Trusts.
In the event Junior Subordinated Debt Securities are issued to a Financing
Trust (or a Trustee of a Financing Trust) in connection with the issuance of
Trust Securities by the Financing Trust, such Junior Subordinated Debt
Securities subsequently may be distributed pro rata to the Holders of the Trust
Securities in connection with the dissolution of the Financing Trust upon the
occurrence of certain events described in a Prospectus Supplement relating to
such Trust Securities. Only one series of Junior Subordinated Debt Securities
will be issued to the Financing Trust, or a Trustee of such Financing Trust, in
connection with the issuance of Trust Securities by the Financing Trust.
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If Junior Subordinated Debt Securities are issued to a Financing Trust or
to a Trustee of a Financing Trust in connection with the issuance of Trust
Securities and (i) there shall have occurred any event that would constitute an
Event of Default under the Junior Subordinated Indenture, (ii) the Company shall
be in default with respect to its payment of any obligations under the related
Preferred Securities Guarantee or limited guarantee of the Common Securities, or
(iii) the Company shall have given notice of its election to defer payments of
interest on such Junior Subordinated Debt Securities by extending the interest
payment period as provided in the Junior Subordinated Indenture and such period,
or any extension thereof, shall be continuing, then (a) the Company shall not
declare or pay dividends on, or make a distribution with respect to or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of its
capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank on par with or junior to such Junior
Subordinated Debt Securities; provided, however, that, restriction (a) above
does not apply to any stock dividends paid by the Company where the dividend
stock is the same stock as that on which the dividend is being paid.
If the Company fails to make interest or other payments on the Junior
Subordinated Debt Securities when due, the Declaration provides a mechanism
whereby the holders of the Preferred Securities may direct the Property Trustee
to enforce its rights under the Junior Subordinated Debt Securities. If the
Property Trustee fails to enforce its rights under the Junior Subordinated Debt
Securities, any holder of Preferred Securities may institute a legal proceeding
against the Company to enforce the Property Trustee's rights under the Junior
Subordinated Debt Securities without first instituting any legal proceeding
against the Property Trustee or any other person or entity. Notwithstanding the
foregoing, if the Company has failed to pay interest or principal on the Junior
Subordinated Debt Securities on the date such interest or principal is otherwise
payable, then, pursuant to the terms of the Junior Subordinated Indenture, a
holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder directly of the principal of or interest
on the Junior Subordinated Debt Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Junior Subordinated Debt
Securities.
In the event Junior Subordinated Debt Securities are issued to a Financing
Trust or a Trustee of a Financing Trust, in connection with the issuance of
Trust Securities, for so long as the Trust Securities remain outstanding, the
Company will covenant (i) to directly or indirectly maintain 100% ownership of
the Common Securities; provided, however, that any permitted successor of the
Company under the Junior Subordinated Indenture may succeed to the Company's
ownership of such Common Securities; and (ii) to use its reasonable efforts to
cause the Financing Trust (a) to remain a statutory business trust, except in
connection with the distribution of Junior Subordinated Debt Securities to the
holders of Trust Securities in liquidation of the Financing Trust, the
redemption of all of the Trust Securities, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes.
DESCRIPTION OF CAPITAL STOCK
The following summary of certain provisions of the Certificate of
Incorporation of the Company (the "Certificate of Incorporation"), the By-Laws
of the Company (the "By-Laws") and a Rights Agreement between the Company and
Norwest Bank Minnesota, National Association, as Rights Agent (as amended, the
"Rights Agreement"), does not purport to be complete and is qualified in its
entirety by reference to such documents, copies of which are included as
exhibits to the Registration Statement.
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Rule 13e-4 and Rule 14e-1 of the Commission's rules and regulations
relating to tender offers, as currently in effect and interpreted by the
Commission's staff, may be applicable to certain repurchases of Offered
Securities that are equity securities or exchange or conversion of Offered
Securities for such equity securities. If, at the time of any such repurchase,
exchange or conversion, Rule 13e-4 or Rule 14e-1 (or any successor rule) applies
to such transaction, the Company will comply with such rule (or any successor
rule) and will afford holders of such Offered Securities all rights and will
make all filings required by such rule (or successor rule). Rule 13e-4 and Rule
14e-1 may also be deemed to apply to Offered Securities that are mandatorily
convertible into equity securities.
GENERAL
The authorized capital stock of the Company consists of 100,000,000 shares
of Common Stock and 7,000,000 shares of Preferred Stock, all without par value.
All issued and outstanding shares of Common Stock are, and the shares
issuable upon conversion of or in exchange for any Offered Securities will be,
fully paid and non-assessable. Holders of shares of Common Stock and holders of
shares of Preferred Stock do not have any preemptive rights to subscribe for or
purchase any securities of the Company, except, with respect to shares of
Preferred Stock, such preemptive rights as may be provided in the resolution or
resolutions of the Board of Directors of the Company or a committee designated
by the Board of Directors of the Company providing for the issuance thereof.
Holders of shares of Common Stock have the rights described below under "Share
Rights Plan."
PREFERRED STOCK
The Certificate of Incorporation authorizes the Board of Directors of the
Company to issue, without action or approval of the Company's shareholders, one
or more series of Preferred Stock with such designations, voting powers,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issuance thereof.
There are also currently reserved for issuance up to 2,500,000 shares of
Series A Junior Participating Preferred Stock ("Junior Participating Preferred
Stock") of the Company issuable under the Rights Agreement referred to below
under "Share Rights Plan."
DIVIDENDS
Under Delaware law, subject to restrictions contained in the Certificate of
Incorporation discussed in the following paragraph, dividends may be declared or
paid out of surplus of the Company or, if there is no such surplus, out of net
profits for the fiscal year in which the dividend is declared and/or the
preceding fiscal year.
The Certificate of Incorporation provides that so long as there are
outstanding any shares of Preferred Stock entitled to cumulative dividends, no
dividends (other than dividends payable in shares of Common Stock) may be paid
or declared, nor may any distribution be made, on shares of Common Stock, nor
may any shares of Common Stock be purchased, redeemed or otherwise acquired for
value by the Company (other than in exchange for, or through application of the
proceeds of the sale of, shares of Common Stock) if the Company is in default
with respect to any dividend payable on, or obligation to redeem or to maintain
a purchase, retirement or sinking fund with respect to, shares of Preferred
Stock.
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The Company is primarily a holding company owning, directly or indirectly,
the capital stock of ReliaStar Life, other insurance company subsidiaries, and
other subsidiaries. There are legal limitations on the extent to which ReliaStar
Life and the Company's other insurance company subsidiaries may pay dividends or
lend or otherwise supply funds to the Company or ReliaStar Life.
The payment of future dividends by the Company will be largely dependent
upon the ability of ReliaStar Life to pay dividends to the Company. Under
Minnesota insurance law regulating the payment of dividends by ReliaStar Life,
any such payments shall be in an amount deemed prudent by ReliaStar Life's board
of directors and, unless otherwise approved by the Commissioner, must be paid
solely from the adjusted earned surplus of ReliaStar Life. Adjusted earned
surplus means the earned surplus as determined in accordance with statutory
accounting principles (unassigned funds) less 25% of the amount of such earned
surplus that is attributable to net unrealized capital gains. Further, without
approval of the Commissioner, ReliaStar Life may not pay in any calendar year
any dividend that, when combined with other dividends paid within the preceding
12 months, exceeds the greater of (i) 10% of ReliaStar Life's statutory surplus
at the prior year end or (ii) 100% of ReliaStar Life's statutory net gain from
operations (not including realized capital gains) for the prior calendar year.
The payment of future dividends by the Company may be affected by the
foregoing limitations, further restrictions and limitations in the event of
statutory or regulatory changes and by such other factors as the Board of
Directors of the Company may deem relevant. See also "Particular Terms of Junior
Subordinated Debt Securities Issued in Connection with Preferred Securities."
VOTING RIGHTS
The Certificate of Incorporation provides that, except as otherwise
provided by law or the Certificate of Incorporation, holders of shares of Common
Stock are entitled to one vote per share. Holders of shares of Common Stock do
not have any cumulative voting rights.
Except as otherwise provided by law or by the resolution or resolutions
providing for the issuance thereof, holders of shares of Preferred Stock have no
voting rights.
The Certificate of Incorporation requires the affirmative vote of 75% of
the Company's outstanding capital stock entitled to vote, voting as a single
class, (i) to approve certain "Business Combinations" involving an "Interested
Shareholder" unless the transaction is approved by a majority of the "Continuing
Directors," as these terms are defined in the Certificate of Incorporation (the
"Fair Price Provision"), (ii) to remove directors, (iii) to effect certain
amendments to the Certificate of Incorporation, and (iv) in order for the
shareholders of the Company to amend its By-Laws.
SHARE RIGHTS PLAN
Pursuant to the Rights Agreement, each share of Common Stock issued by the
Company has attached one preferred share purchase right (a "Right"). Each Right
entitles the registered holder to purchase from the Company one-tenth of a share
of Junior Participating Preferred Stock at an exercise price of $200, subject to
adjustment.
Until the Distribution Date, the Rights will be evidenced by certificates
representing shares of Common Stock and will be transferred only with the shares
of Common Stock. The Rights will separate from the shares of Common Stock and a
Distribution Date for the Rights will occur upon the earlier of (i) the close of
business on the 15th day following a public announcement that a person or group
of
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affiliated or associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding shares of Common Stock, or (ii) the close of business on the 15th
day following the commencement or announcement of a tender or exchange offer the
consummation of which would result in a person or group of affiliated or
associated persons becoming the beneficial owner of 20% or more of the
outstanding shares of Common Stock.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on September 8, 2004, unless extended or earlier redeemed by the Company.
In the event that (i) the Company is the surviving corporation in a merger,
consolidation or statutory share exchange with an Acquiring Person and
outstanding shares of the Company are not changed or exchanged, (ii) an
Acquiring Person engages in one of a number of self-dealing transactions
specified in the Rights Agreement, (iii) an Acquiring Person increases by more
than 1% its proportion of beneficial ownership of the outstanding shares of any
class of equity securities or securities exercisable for or convertible into
equity securities of the Company or any of its subsidiaries pursuant to a
recapitalization, reclassification or similar transaction, or (iv) a person
(other than the Company and certain of its affiliates) becomes a beneficial
owner of 20% or more of the outstanding shares of Common Stock, each holder of a
Right (other than Rights beneficially owned by an Acquiring Person or, in
certain circumstances, transferees) will thereafter have the right to receive,
upon exercise thereof at the then current exercise price of the Right, that
number of shares of Common Stock having a market value of two times the exercise
price of the Right, subject to certain possible adjustments.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of the assets or earning power of the
Company and its subsidiaries (taken as a whole) are sold after a public
announcement that a person has become an Acquiring Person, each holder of a
Right will thereafter have the right to receive, upon exercise thereof at the
then current exercise price of the Right, that number of common shares of the
Acquiring Person (or in certain cases, one of its affiliates) having a market
value of two times the exercise price of the Right.
In certain instances, the Company may exchange Rights for shares of Common
Stock or reduce the 20% stock ownership threshold to not less than 10%.
The Rights are redeemable at a price of one cent per Right at any time
prior to the 30th day after a public announcement that a person has become an
Acquiring Person, provided, however, that such redemption may occur after any
person has become an Acquiring Person only if there has not been a change in
control of the Board of Directors of the Company. The redemption period may be
extended if no such change in control has occurred or if no person has become an
Acquiring Person.
LIQUIDATION
Subject to preferential payments due or other rights with respect to any
shares of Preferred Stock that may then be issued and outstanding, in the event
of any liquidation of the Company the holders of Common Stock are entitled to
share, in proportion to the number of shares of Common Stock held, in the assets
remaining after discharge of all obligations and liabilities of the Company.
LIMITATIONS ON CHANGE IN CONTROL
The Certificate of Incorporation and the By-Laws provide that the Board of
Directors of the Company will be divided into three classes serving staggered
terms, with one class of directors to be elected
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for a three-year term at each annual meeting of shareholders. As a result, at
least two meetings of the Company's shareholders will generally be required for
the Company's shareholders to effect a change in control of the Board of
Directors of the Company. The Certificate of Incorporation and the By-Laws also
provide that shareholder action may be taken only at annual or special meetings
of shareholders, and may not be taken by shareholder consent, and that
shareholders are not permitted to call, or to require the Company's Board of
Directors to call, special meetings of shareholders. The Certificate of
Incorporation provides that, when considering a merger, consolidation, sale of
assets, business combination (including a Business Combination under the Fair
Price Provision) or other transaction (including a tender or exchange offer),
the Company's Board of Directors , any committee thereof and the directors and
the officers of the Company may, in considering the best interests of the
Company and its shareholders, consider the interests of and the effects of such
transaction upon the employees, customers and suppliers of the Company and its
subsidiaries and upon communities in which the Company and its subsidiaries are
located or do business. The By-Laws provide that advance notice of nominations
for the election of directors to be made at, and business to be brought before,
an annual meeting of shareholders by a shareholder must be received by the
Secretary of the Company not less than 60 days in advance of such meeting
(except that if public disclosure of such meeting is made less than 75 days
prior to the meeting, the notice need only be received within 15 days following
such public disclosure). The Company has entered into agreements with certain of
its executive employees for certain financial arrangements that the Company will
provide upon termination of employment under certain circumstances following a
change in control of the Company. In addition, certain retirement and other
employee benefit arrangements provide for accelerated vesting of benefits and
allocation to participants of surplus retirement plan benefits upon a change in
control of the Company. The foregoing provisions and agreements, the voting
provisions, including the Fair Price Provision, referred to above under "Voting
Rights," the Rights Agreement and the authority of the Board of Directors of the
Company to issue additional shares of capital stock, without action or approval
of the shareholders, could have the effect of discouraging, delaying or
preventing a tender or exchange offer, proxy contest or other attempt to gain
control of or change the management of the Company.
LIMITATION ON CERTAIN LIABILITY OF DIRECTORS AND INDEMNIFICATION
The Certificate of Incorporation and the By-Laws contain provisions
limiting the liability of directors for monetary damages to the Company and its
shareholders for breach of fiduciary duty of care to the Company and authorizing
the indemnification of directors, officers and employees to the fullest extent
permitted by Delaware law. The Company maintains a directors' and officers'
liability insurance policy.
TRANSFER AGENT
The Transfer Agent for the Company's Common Stock is Norwest Bank
Minnesota, National Association.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of Depositary Shares
and Depositary Receipts does not purport to be complete and is subject to and
qualified in its entirety by reference to the Deposit Agreement and Depositary
Receipts relating to a series of Preferred Stock, which will be filed with the
Commission at or prior to the time of the offering of such series.
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GENERAL
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock rather than full shares. In the event such option is
exercised, the Company will provide for the issuance by a Depositary to the
public of Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of Depositary Shares) in a share of a particular
series of Preferred Stock as described below.
The shares of any series of Preferred Stock underlying Depositary Shares
will be deposited under a separate deposit agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and address of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock underlying such Depositary Share, to all
the rights and preferences of the shares of Preferred Stock underlying such
Depositary Share (including dividend, voting, redemption, conversion and
liquidation rights).
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
Upon surrender of the Depositary Receipts at the principal office of the
Depositary in Minneapolis (unless the related Depositary Shares have previously
been called for redemption), the holder of the Depositary Shares evidenced
thereby is entitled to delivery at such office, to or upon the holder's order,
of the number of shares of Preferred Stock and any money or other property
represented by such Depositary Shares. Fractional shares will not be issued. If
the Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares. Holders of shares of Preferred Stock thus withdrawn
will not thereafter be entitled to deposit such shares under the Deposit
Agreement or to receive Depositary Shares therefor. The Company does not expect
that there will be any public trading market for underlying shares of Preferred
Stock except as represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the underlying shares of Preferred Stock to
the record holders of related Depositary Shares in proportion to the numbers of
such Depositary Shares owned by such holders on the relevant record date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed shall be added to and treated as part of the
next sum received by the Depositary for distribution to record holders of
Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not
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feasible to make such distribution, in which case the Depositary may, with the
approval of the Company, sell such property and distribute to such holders the
net proceeds received from such sale.
The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by the Company to holders of
the shares of Preferred Stock shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of Preferred Stock underlying Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary shall mail
notice of redemption not less than 30 and not more then 60 days prior to the
date fixed for redemption to the record holders of the Depositary Shares to be
so redeemed at their respective addresses appearing in the Depositary's books.
The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of Preferred Stock. Whenever the Company redeems shares of Preferred Stock held
by the Depositary, the Depositary will redeem as of the same redemption date the
number of Depositary Shares relating to the shares so redeemed. If less than all
the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
will be selected by lot or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of such Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the shares of
any series of Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such shares. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the shares) will be entitled to instruct the Depositary as to the exercise of
the voting rights pertaining to the number of shares of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of shares underlying such Depositary
Shares in accordance with such instructions, and the Company will agree to take
all action that may be deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from voting shares to the
extent it does not receive specific instructions from the recordholders of
related Depositary Shares.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the shares of Preferred Stock represented by such
Depositary Shares and, accordingly, will be entitled to take into account for
federal income tax purposes income and deductions to which they would be
entitled if they were holders of such shares. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of shares
in exchange for Depositary Shares as provided in the Deposit Agreement, (ii) the
tax basis of each share to an exchanging owner of Depositary Shares will, upon
such exchange, be the same as the aggregate tax basis of the Depositary Shares
exchanged therefor, and (iii) the
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holding period for the shares in the hands of an exchanging owner of Depositary
Shares who held such Depositary Shares as a capital asset at the time of the
exchange thereof for shares will include the period during which such person
owned such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. A
Deposit Agreement may be terminated by the Company or the Depositary only if (i)
all outstanding Depositary Shares relating thereto have been redeemed or (ii)
there has been a final distribution in respect of the shares of Preferred Stock
of the relevant series in connection with any liquidation, dissolution or
winding up of the Company and such distribution has been distributed to the
holders of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of the
shares of Preferred Stock and any redemption of such shares. Holders of
Depositary Shares will pay other transfer and other taxes and governmental
charges and such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Company which are delivered to the Depositary and
which the Company is required to furnish to the holders of underlying shares of
Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or shares of
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by holders of
Depositary Shares or other persons believed to be competent and on documents
believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
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DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities, Preferred
Stock or Depositary Shares offered by any Prospectus Supplement and may be
attached to or separate from such Debt Securities, Preferred Stock or Depositary
Shares. Each series of Securities Warrants will be issued under a separate
warrant agreement (a "Securities Warrant Agreement") to be entered into between
the Company and a bank or trust company, as Securities Warrant Agent, all as set
forth in the Prospectus Supplement relating to the particular issue of offered
Securities Warrants. The Securities Warrant Agent will act solely as an agent of
the Company in connection with the Securities Warrant Certificates and will not
assume any obligation or relationship of agency or trust for or with any holders
of Securities Warrant Certificates or beneficial owners of Securities Warrants.
Copies of the forms of Securities Warrant Agreements, including the forms of
Securities Warrant Certificates representing the Securities Warrants, are filed
as exhibits to the Registration Statement. The following summaries of certain
provisions of the forms of Securities Warrant Agreements and Securities Warrant
Certificates do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Securities Warrant
Agreements and the Securities Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement
will describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the currencies in which such Securities
Warrants are being offered; (iii) the designation, aggregate principal amount,
currencies, denominations and terms of the series of Debt Securities purchasable
upon exercise of such Securities Warrants; (iv) the designation and terms of any
series of Debt Securities, Preferred Stock or Depositary Shares with which such
Securities Warrants are being offered and the number of such Securities Warrants
being offered with each such Debt Security, share of Preferred Stock or
Depositary Share; (v) the date on and after which such Securities Warrants and
the related series of Debt Securities, Preferred Stock or Depositary Shares will
be transferable separately; (vi) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Securities Warrant and the
price at which and currencies in which such principal amount of Debt Securities
of such series may be purchased upon such exercise; (vii) the date on which the
right to exercise such Securities Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (viii) whether the
Securities Warrants will be issued in registered or bearer form; (ix) United
States federal income tax consequences; and (x) any other terms of such
Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Stock,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise of such Securities Warrants and, in the case of
Securities Warrants for Preferred Stock or Depositary Shares, the designation,
aggregate number of shares and terms of the series of Preferred Stock
purchasable upon exercise of such Securities Warrants or underlying the
Depositary Shares purchasable upon exercise of such Securities Warrants; (iii)
the designation and terms of the series of Debt Securities, Preferred Stock or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
share of Preferred Stock or Depositary Share; (iv) the date on and after which
such Securities Warrants and the related series of Debt Securities, shares of
Preferred Stock or Depositary Shares will be transferable separately; (v) the
number of shares of Preferred Stock, Depositary Shares or shares of Common Stock
purchasable upon exercise of each such Securities Warrant and the price at which
such number of shares of Preferred Stock or
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Depositary Shares of such series or shares of Common Stock may be purchased upon
each exercise; (vi) the date on which the right to exercise such Securities
Warrants shall commence and the Expiration Date; (vii) United States federal
income tax consequences; and (viii) any other terms of such Securities Warrants.
Securities Warrants for the purchase of Preferred Stock, Depositary Shares or
Common Stock will be offered and exercisable for U.S. dollars only and will be
in registered form only.
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer and may be exercised at the corporate
trust office of the Securities Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of Holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal of or any
premium or interest on the Debt Securities purchasable upon such exercise or to
enforce covenants in the applicable Indenture. Prior to the exercise of any
Securities Warrants to purchase Preferred Stock, Depositary Shares or Common
Stock, holders of such Securities Warrants will not have any of the rights of
holders of the Preferred Stock, Depositary Shares or Common Stock purchasable
upon such exercise, including the right to receive payments of dividends, if
any, on the Preferred Stock, Depositary Shares or Common Stock purchasable upon
such exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of shares of Preferred Stock,
Depositary Shares or shares of Common Stock, as the case may be, at such
exercise price as shall in each case be set forth in, or calculable from, the
applicable Prospectus Supplement. After the close of business on the Expiration
Date (or such later date to which such Expiration Date may be extended by the
Company), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant Agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities, Preferred Stock, Depositary
Shares or Common Stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the
Securities Warrant Certificate. Securities Warrants will be deemed to have been
exercised upon receipt of payment of the exercise price, subject to the receipt,
within five business days, of the Securities Warrant Certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Securities Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the Debt
Securities, Preferred Stock, Depositary Shares or Common Stock, as the case may
be, purchasable upon such exercise. If fewer than all of the Securities Warrants
represented by such Securities Warrant Certificate are exercised, a new
Securities Warrant Certificate will be issued for the remaining amount of
Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without
the consent of the holders of the Securities Warrants issued thereunder to
effect changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
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COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant are subject to adjustment in certain events, including (i) the
issuance of capital stock as a dividend or distribution on the Common Stock;
(ii) subdivisions and combinations of the Common Stock; (iii) the issuance to
all holders of Common Stock of certain rights or warrants entitling them to
subscribe for or purchase Common Stock within 45 days after the date fixed for
the determination of the shareholders entitled to receive such rights or
warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); and (iv) the distribution
to all holders of Common Stock of evidences of indebtedness or assets of the
Company (excluding certain cash dividends and distributions described in the
next paragraph) or rights or warrants (excluding those referred to above). In
the event that the Company shall distribute any rights or warrants to acquire
capital stock pursuant to clause (iv) above (the "Capital Stock Rights")
pursuant to which separate certificates representing such Capital Stock Rights
will be distributed subsequent to the initial distribution of such Capital Stock
Rights (whether or not such distribution shall have occurred prior to the date
of the issuance of a series of Common Stock Warrants), such subsequent
distribution shall be deemed to be the distribution of such Capital Stock
Rights; provided that the Company may, in lieu of making any adjustment in the
exercise price of and the number of shares of Common Stock covered by a Common
Stock Warrant upon a distribution of separate certificates representing such
Capital Stock Rights, make proper provision so that each holder of such a Common
Stock Warrant who exercises such Common Stock Warrant (or any portion thereof)
(a) before the record date for such distribution of separate certificates shall
be entitled to receive upon such exercise shares of Common Stock issued with
Capital Stock Rights and (b) after such record date and prior to the expiration,
redemption or termination of such Capital Stock Rights shall be entitled to
receive upon such exercise, in addition to the shares of Common Stock issuable
upon such exercise, the same number of such Capital Stock Rights as would a
holder of the number of shares of Common Stock that such Common Stock Warrant so
exercised would have entitled the holder thereof to acquire in accordance with
the terms and provisions applicable to the Capital Stock Rights if such Common
Stock Warrant was exercised immediately prior to the record date for such
distribution. Common Stock owned by or held for the account of the Company or
any majority owned subsidiary shall not be deemed outstanding for the purpose of
any adjustment.
No adjustment in the exercise price of and the number of shares of Common
Stock covered by a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect; provided that any such adjustment
not so made will be carried forward and taken into account in any subsequent
adjustment; and provided further that any such adjustment not so made shall be
made no later than three years after the occurrence of the event requiring such
adjustment to be made or carried forward. Notwithstanding any of the foregoing,
the issuance of Common Stock under the DRIP shall not require an adjustment in
the exercise price of or number of shares of Common Stock covered by a Common
Stock Warrant. Except as stated above, the exercise price of and the number of
shares of Common Stock covered by a Common Stock Warrant will not be adjusted
for the issuance of Common Stock or any securities convertible into or
exchangeable for Common Stock, or securities carrying the right to purchase any
of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Company or, (iii) a sale or conveyance to
another corporation of the property and assets of the Company as an entirety or
substantially as an entirety, in each case as a result of which holders of the
Company's Common Stock will be entitled to receive stock, securities, other
property or assets (including
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cash) in respect of or in exchange for such Common Stock, the holders of the
Common Stock Warrants then outstanding will be entitled thereafter to convert
such Common Stock Warrants into the kind and amount of shares of stock and other
securities or property which they would have received upon such
reclassification, change, consolidation, merger, sale or conveyance had such
Common Stock Warrants been exercised immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance.
DESCRIPTION OF PREFERRED SECURITIES OF THE FINANCING TRUSTS
Each Financing Trust may issue, from time to time, only one series of
Preferred Securities having terms described in a Prospectus Supplement relating
thereto. The Declaration of each Financing Trust will be qualified as an
indenture under the Trust Indenture Act.
The Preferred Securities will have such terms, including distributions,
redemption, exchange, sinking fund and liquidation provisions, voting and other
rights and such other preferred, deferred or other special rights or such
restrictions as shall be set forth in the Declaration or made part of the
Declaration by the Trust Indenture Act. Reference is made to a Prospectus
Supplement relating to the Preferred Securities for specific terms, including
(i) the distinctive designation of the Preferred Securities, (ii) the number of
Preferred Securities and the date or dates upon which distributions shall be
payable (provided, however, that distributions on the Preferred Securities shall
be payable on a quarterly basis to holders of the Preferred Securities as of a
record date in each quarter during which the Preferred Securities are
outstanding), (iii) whether distributions on Preferred Securities issued by the
Financing Trust shall be cumulative, and, in the case of Preferred Securities
having such cumulative distribution rights, the date or dates or method of
determining the date or dates from which distributions on Preferred Securities
shall be cumulative, (iv) the amount or amounts which shall be paid out of the
assets of the Financing Trust to the holders of Preferred Securities upon
voluntary or involuntary dissolution, winding-up or termination of the Trust,
(v) the obligation, if any, of the Financing Trust to purchase or redeem
Preferred Securities and the price or prices at which, the period or periods
within which and the terms and conditions upon which the Preferred Securities
shall be purchased or redeemed, in whole or in part, pursuant to such
obligation, (vi) the voting rights, if any, of Preferred Securities in addition
to those required by law, including the number of votes per Preferred Security
and any requirement for the approval by the holders of Preferred Securities as a
condition to specified action or amendments to the Declaration, and (vii) any
other relevant rights, preferences, or privileges of, or limitations or
restrictions on, Preferred Securities consistent with the Declaration and
applicable law. The distribution rate and the distribution payment dates and
other payment dates for the Preferred Securities will correspond to the interest
rate and interest payment dates and other payment dates on the Junior
Subordinated Debt Securities, which will be the sole assets of the Financing
Trust.
All Preferred Securities offered hereby will be guaranteed by the Company
to the extent set forth below under "The Preferred Securities Guarantee."
Certain United States federal income tax considerations applicable to any
offering of Preferred Securities will be described in the Prospectus Supplement
relating thereto.
In connection with the issuance of Preferred Securities, each Financing
Trust will issue one series of Common Securities having such terms including
distributions, redemption, voting, liquidation rights or such restrictions as
shall be set forth therein. The terms of the Common Securities will be
substantially identical to the terms of the Preferred Securities and the Common
Securities will rank on par, and payments will be made thereon pro rata, with
the Preferred Securities except that, upon an event of default under the
Declaration, the rights of the holders of the Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
will be subordinated to the rights of the holders of the
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Preferred Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote and to appoint, remove or replace
any of the ReliaStar Trustees. All of the Common Securities will be directly or
indirectly owned by the Company.
TAX LEGISLATION
On February 6, 1997, as part of President Clinton's Fiscal 1998 Budget
Proposal, the United States Treasury Department proposed legislation that would,
among other things, deny an issuer a deduction for United States federal income
tax purposes for the payment of interest on instruments with characteristics
similar to the Junior Subordinated Debentures. If the proposed legislation were
enacted in its current form, it is not expected to apply to the Junior
Subordinated Debentures since the proposed effective date for this provision is
the date of first committee action. There can be no assurances, however, that
the proposed legislation, if enacted, or similar legislation enacted after the
date hereof would not adversely affect the tax treatment of the Junior
Subordinated Debentures.
THE PREFERRED SECURITIES GUARANTEE
Set forth below is a summary of information concerning the Preferred
Securities Guarantee that will be executed and delivered by the Company for the
benefit of the holders, from time to time, of Preferred Securities. The
Preferred Securities Guarantee will be qualified as an indenture under the Trust
Indenture Act. Wilmington Trust Company will act as indenture trustee under
the Preferred Securities Guarantee (the "Guarantee Trustee"). The terms of the
Preferred Securities Guarantee will be those set forth in the Preferred
Securities Guarantee and those made part of the Preferred Securities Guarantee
by the Trust Indenture Act. This summary does not purport to be complete and is
subject in all respects to the provisions of, and is qualified in its entirety
by reference to, the form of Preferred Securities Guarantee, which is filed as
an exhibit to the Registration Statement of which this Prospectus forms a part,
and the Trust Indenture Act. The Preferred Securities Guarantee will be held by
the Guarantee Trustee for the benefit of the holders of the Preferred
Securities.
GENERAL
Pursuant to the Preferred Securities Guarantee, the Company will agree, to
the extent set forth herein, to pay in full to the holders of the Preferred
Securities the Guarantee Payments (as defined herein) (except to the extent paid
by the Financing Trust), as and when due, regardless of any defense, right of
set-off or counterclaim which the Financing Trust may have or assert. The
following payments or distributions with respect to Preferred Securities (the
"Guarantee Payments"), to the extent not paid or made by the Financing Trust,
will be subject to the Preferred Securities Guarantee (without duplication): (i)
any accrued and unpaid distributions that are required to be paid on the
Preferred Securities, to the extent the Financing Trust shall have funds
available therefor, (ii) the redemption price, including all accrued and unpaid
distributions (the "Redemption Price"), to the extent the Financing Trust has
funds available therefor with respect to any Preferred Securities called for
redemption by the Trust, and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Financing Trust (other than in connection with
the distribution of Junior Subordinated Debt Securities to the holders of
Preferred Securities or the redemption of all the Preferred Securities) the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on the Preferred Securities to the date of payment to the extent
the Financing Trust has funds available therefor or (b) the amount of assets of
the Financing Trust remaining available for distribution to holders of the
Preferred Securities in liquidation of the Financing Trust. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the
35
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Company to the holders of Preferred Securities or by causing the Financing Trust
to pay such amounts to such holders.
The Preferred Securities Guarantee will be a guarantee on a subordinated
basis of the Guarantee Payments from the time of issuance, but will not apply to
any payment of distributions except to the extent the Financing Trust shall have
funds available therefor. If the Company does not make interest payments on the
Junior Subordinated Debt Securities purchased by the Financing Trust, the
Financing Trust will not pay distributions on the Preferred Securities and will
not have funds available therefor. See "Particular Terms of Junior Subordinated
Debt Securities Issued in Connection with Preferred Securities." The Preferred
Securities Guarantee, when taken together with the Company's obligations under
the Junior Subordinated Debt Securities, the Junior Subordinated Indenture and
the Declaration, including its obligations to pay costs, expenses and certain
liabilities of the Financing Trust (other than with respect to the Trust
Securities), provides a full and unconditional guarantee of amounts due on the
Preferred Securities.
The Company has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Financing Trust with respect to the Common
Securities (the "Common Securities Guarantee") to the same extent as the
Preferred Securities Guarantee, except that, upon an Event of Default under the
Junior Subordinated Indenture, holders of Preferred Securities under the
Preferred Securities Guarantee shall have priority over holders of Common
Securities under the Common Securities Guarantee with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In the Preferred Securities Guarantee, the Company will covenant that, so
long as any Preferred Securities issued by the Financing Trust remain
outstanding, if there shall have occurred any event that would constitute an
event of default under the Preferred Securities Guarantee or the Declaration,
then (a) the Company shall not declare or pay any dividend on, or make any
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock and (b) shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Company that
which rank on par with or junior to such Junior Subordinated Debt Securities.
However, the Preferred Securities Guarantee will except from the foregoing any
stock dividends paid by the Company where the dividend stock is the same as that
on which the dividend is being paid.
MODIFICATIONS OF THE PREFERRED SECURITIES GUARANTEE; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required), the
Preferred Securities Guarantee may be amended only with the prior approval of
the holders of a majority in liquidation amount of the Preferred Securities then
outstanding. All guarantees and agreements contained in a Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Preferred Securities Guarantee will occur
upon the failure of the Company to make any of the payments required by the
Preferred Securities Guarantee or to perform its other obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available
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to the Guarantee Trustee in respect of the Preferred Securities Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under the Preferred Securities Guarantee.
If the Company fails to make any of the payments required by the Preferred
Securities Guarantee, a holder of Preferred Securities may directly institute a
proceeding against the Company for enforcement of such holder's rights to
receive such payments under the Preferred Securities Guarantee without first
instituting a legal proceeding against the Financing Trust, the Guarantee
Trustee or any other person or entity.
The Company will be required to provide annually to the Guarantee Trustee a
statement as to the performance by the Company of certain of its obligations
under the Preferred Securities Guarantee and as to any default in such
performance.
The Company is required to file annually with the Guarantee Trustee an
officer's certificate as to the Company's compliance with all conditions under
the Preferred Securities Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with respect to
the Preferred Securities Guarantee and after curing all such defaults that may
have occurred, undertakes to perform only such duties as are specifically set
forth in the Preferred Securities Guarantee and, after default, shall exercise
the same degree of care as a prudent individual would exercise in the conduct of
his or her own affairs. Subject to such provisions, the Guarantee Trustee is
under no obligation to exercise any of the powers vested in it by the Preferred
Securities Guarantee at the request of any holder of Preferred Securities,
unless offered reasonable indemnity against the costs, expenses and liabilities
which might be incurred thereby.
TERMINATION
The Preferred Securities Guarantee will terminate as to the Preferred
Securities upon full payment of the Redemption Price of all Preferred
Securities, upon distribution of the Junior Subordinated Debt Securities held by
the Financing Trust to the holders of the Preferred Securities or upon full
payment of the amounts payable in accordance with the Declaration upon
liquidation of the Financing Trust. The Preferred Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities must restore payment of any sums paid
under the Preferred Securities or the Preferred Securities Guarantee.
STATUS OF THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will constitute an unsecured obligation
of the Company and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Company (other than the Common Securities
Guarantee), (ii) on par with the most senior preferred or preference stock
hereafter issued by the Company and with any guarantee now or hereafter entered
into by the Company in respect of any preferred or preference stock of any
affiliate of the Company and (iii) senior to the Common Stock. The terms of the
Preferred Securities provide that each holder of Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
Preferred Securities Guarantee.
The Preferred Securities Guarantee will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its
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rights under the Preferred Securities Guarantee without instituting a legal
proceeding against any other person or entity).
GOVERNING LAW
The Preferred Securities Guarantee will be governed by and construed in
accordance with the internal laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may offer and sell the Offered Securities in any of three ways:
(i) through agents; (ii) through underwriters or dealers; or (iii) directly to
one or more purchasers. The Prospectus Supplement with respect to any of the
Offered Securities will set forth the terms of the offering of such Offered
Securities, including the name or names of any underwriters or agents, the
purchase price of such Offered Securities, the proceeds to the Company from such
sale, any underwriting discounts or agency fees and other items constituting
underwriters' or agents' compensation, the initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers, and any
securities exchanges on which such Offered Securities may be listed.
The distribution of the Offered Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contributions
with respect to payments which the underwriters, dealers or agents may be
required to make in respect thereof. Such underwriters, dealers and agents, and
affiliates thereof, may be customers of, engage in transactions with, or perform
services for the Company and its affiliates in the ordinary course of business.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that, in
connection with the original issuance of such Bearer Securities, it will not
offer, sell or deliver, directly or indirectly, Bearer Securities to a United
States Person or to any person within the United States, except to the extent
permitted under United States Treasury regulations.
All Offered Securities will be new issues of securities with no established
trading market. Any underwriters to whom Offered Securities are sold by the
Company for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given concerning the liquidity of the trading market for any Offered Securities.
VALIDITY OF SECURITIES
The validity of the Debt Securities, Preferred Stock, Depository Shares and
Securities Warrants will be passed upon for the Company by Faegre & Benson LLP,
Minneapolis, Minnesota.
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EXPERTS
The consolidated financial statements of the Company and related financial
statement schedules as of December 31, 1996 and 1995 and for each of the three
years in the period ended December 31, 1996, incorporated herein by reference
from the Company's Annual Report on Form 10-K for the year ended December 31,
1996, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated herein by reference, and have
been so incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THE
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS, IN CONNECTION WITH THE OFFER CONTAINED
HEREIN, AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE TRUST OR THE
UNDERWRITERS. NEITHER THE DELIVERY OF THE PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE AS OF WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS. THE PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANY PERSON IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
__________________________
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by the Registrants in connection with the issuance and
distribution of the securities being registered:
Registration fee.................................. $ 121,212
Listing fees...................................... 56,000
Legal services and expenses....................... 60,000
Trustee and depositary services and expenses...... 40,000
Accounting services and expenses.................. 50,000
Printing fees..................................... 75,000
Rating agency fees................................ 75,000
Miscellaneous..................................... 27,788
----------
Total............................................ $ 505,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware, which provides for indemnification of directors and officers
in certain circumstances.
Article VIII of the By-Laws of the Company provides for broad
indemnification of directors and officers of the Company. See Exhibit 4(d)
hereto.
The Company also maintains director and officer liability insurance
policies.
In addition, Section 7 of Article Sixth of the Company's Certificate of
Incorporation contains broad provisions limiting the liability of directors for
monetary damages for breach of fiduciary duty as a director. See Exhibit 4(a)
hereto.
The Declaration of Trust provides that no Trustee, affiliate of any
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of a
Financing Trust or its affiliates (each an "Indemnified Person") shall be
liable, responsible or accountable in damages or otherwise to the Financing
Trust or any employee or agent of the Financing Trust or its affiliates for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Financing
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by the
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions. The Declaration also
provides that to the fullest extent permitted by applicable law, the Company
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Financing Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by the Declaration, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts or
omissions. The Declaration further provides that, to the fullest extent
permitted by applicable, law, expenses (including legal fees) incurred by an
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Financing Trust prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by or
an undertaking by or on behalf
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of the Indemnified Person to repay such amount if it shall be determined that
the Indemnified Person is not entitled to be indemnified for the underlying
cause of action as authorized by the Declaration.
ITEM 16. EXHIBITS
Exhibit
Number
------
1(a) Form of Underwriting Agreement for Debt Securities (incorporated by
reference to Exhibit 1(a)(i) to the Company's Registration Statement
on Form S-3, Registration No. 33-87588).
1(b) Form of Underwriting Agreement for Preferred Stock and Depositary
Shares (incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form S-3, Registration No. 33-39960).
1(c) Form of Underwriting Agreement for Preferred Securities (incorporated
by reference to Exhibit 1(c) to the company Current Report on Form 8-K
dated March 29, 1996, File No. 0-17441).
4(a) Certificate of Incorporation, as amended, of the Company (incorporated
by reference to Exhibit 3(b)(1) to the Company's Registration
Statement on Form S-4, Registration No. 33-25107).
4(b) By-Laws, as amended, of the Company (incorporated by reference to
Exhibit 3 to the Company's Annual Report on Form 10-K for the year
ended December 31, 1990, File No. 1-10640).
4(c) Surplus Note (incorporated by reference to Exhibit 4(e) to the
Company's Registration Statement on Form S-3, Registration No. 33-
87588).
4(d) Rights Agreement dated as of October 7, 1988 (incorporated by
reference to Exhibit 1 to the Company's Registration Statement on Form
8-A dated October 4, 1989, File No. 0-17441).
4(e) Amendment to Rights Agreement dated as of February 8, 1990
(incorporated by reference to Exhibit 1 to the Company's Amendment on
Form 8 dated February 15, 1990 to Registration Statement on Form 8-A
dated October 4, 1989, File No. 0-17441).
4(f) Amendment to Rights Agreement dated as of September 10, 1994
(incorporated by reference to Exhibit 1 to the Company's Amendment on
Form 8-A/A dated September 12, 1994 to Registration Statement on Form
8-A dated October 4, 1989, File No. 0-17441).
4(g) Form of Senior Indenture (incorporated by reference to Exhibit 4(i) to
the Company's Registration Statement on Form S-3, Registration No. 33-
87588).
4(h) Form of Senior Subordinated Indenture.
4(i) Form of Junior Subordinated Indenture.
4(j) Form of Certificate of Designations of Preferred Stock (incorporated
by reference to Exhibit 4(b) to the Company's Registration Statement
on Form S-3, Registration No. 33-50310).
4(k) Form of Deposit Agreement, including form of Depositary Receipt
(incorporated by reference to Exhibit 4(d) to the Company's
Registration Statement on Form S-3, Registration No. 33-39960).
4(l) Form of Debt Warrant Agreement, including form of Debt Warrant
Certificate (incorporated by reference to Exhibit 4(m) to the
Company's Registration Statement on Form S-3, Registration No. 33-
87588).
4(m) Form of Preferred Stock Warrant Agreement, including form of Preferred
Stock Warrant Certificate (incorporated by reference to Exhibit 4(n)
to the Company's Registration Statement on Form S-3, Registration No.
33-87588).
4(n) Form of Common Stock Warrant Agreement, including form of Common Stock
Warrant Certificate (incorporated by reference to Exhibit 4(o) to the
Company's Registration Statement on Form S-3, Registration No. 33-
87588).
4(o) Certificates of Trust.
4(p) Form of Declaration of Trust.
4(q) Form of Amended and Restated Declaration of Trust, including form of
Preferred Security.
4(r) Form of Supplemental Indenture to be used in connection with issuance
of Subordinated Debt Securities and Preferred Securities.
4(s) Form of Guarantee with respect to Preferred Securities.
5 Opinion of Faegre & Benson LLP.
II-2
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12 Calculations of ratios of earnings to fixed charges and ratios of
earnings to combined fixed charges and preferred stock dividends.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Faegre & Benson LLP (included in Exhibit 5).
24 Powers of Attorney of directors and officers of the Company.
25(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of _______________ ___________________________________, as
Trustee under the Senior Indenture (to be filed by amendment or
pursuant to a Form 8-K).
25(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of ________________ ___________________________________, as
Trustee under the Senior Subordinated Indenture (to be filed by
amendment or pursuant to a Form 8-K).
25(c) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Wilmington Trust Company, as Trustee under the Junior
Subordinated Indenture (to be filed by amendment or pursuant to a
Form 8-K).
25(d) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Wilmington Trust Company, as Trustee under the Amended and
Restated Declaration (to be filed by amendment or pursuant to a Form
8-K).
25(e) Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of Wilmington Trust Company, as Trustee under the Preferred
Securities Guarantee for the benefit of the holders of Preferred
Securities (to be filed by amendment or pursuant to a Form 8-K).
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933, (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-3
<PAGE>
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Act.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, each Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
act of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on
May 8, 1997.
RELIASTAR FINANCIAL CORP.
(Registrant)
By JOHN G. TURNER*
----------------------------------------------
John G. Turner, Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Financing Trusts certifies that they have reasonable grounds to believe that
they meet all of the requirements for filing on Form S-3 and have duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on
May 8, 1997.
RELIASTAR FINANCING II
RELIASTAR FINANCING III
RELIASTAR FINANCING IV
RELIASTAR FINANCING V
By /s/ WAYNE R. HUNEKE
----------------------------------------------
Wayne R. Huneke, Trustee
By /s/ RICHARD R. CROWL
----------------------------------------------
Richard R. Crowl, Trustee
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on May 8, 1997 by the following persons
in the capacities with ReliaStar Financial Corp. indicated:
JOHN G. TURNER* Chairman and Chief Executive Officer
------------------------------ (Principal Executive Officer)
John G. Turner
/s/ WAYNE R. HUNEKE Senior Vice President, Chief Financial
------------------------------ Officer and Treasurer
Wayne R. Huneke (Principal Financial Officer)
/s/ CHRIS D. SCHREIER Second Vice President and Controller
------------------------------ (Principal Accounting Officer)
Chris D. Schreier
CAROLYN H. BALDWIN )
DAVID C. COX )
JOHN H. FLITTIE )
LUELLA GROSS GOLDBERG )
WILLIAM A. HODDER )
JAMES J. HOWARD III ) A majority of the Board of Directors*
RANDY C. JAMES )
RICHARD L. KNOWLTON )
DAVID A. KOCH )
RICHARD M. KOVACEVICH )
GLEN D. NELSON, M.D. )
JAMES J. RENIER )
JOHN G. TURNER )
___________________
* Richard R. Crowl, by signing his name hereto, does hereby sign this document
on behalf off each of the above-named officers or directors of ReliaStar
Financial Corp. pursuant to powers of attorney duly executed by such persons.
/s/ RICHARD R. CROWL
------------------------------------
Richard R. Crowl
Attorney-in-fact
II-5
<PAGE>
Exhibit 4(h)
================================================================================
RELIASTAR FINANCIAL CORP.
TO
___________________________________________
___________________________________________
TRUSTEE
________________
INDENTURE
DATED AS OF _________________
________________
SENIOR SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties...................................................................... 1
Recitals..................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 10.1 Definition
Act........................................................................ 2
Affiliate.................................................................. 2
Authorized Newspaper....................................................... 2
Bearer Security............................................................ 2
Board of Directors......................................................... 2
Board Resolution........................................................... 2
Business Day............................................................... 3
CEDEL\ or.................................................................. 3
Closing Price.............................................................. 3
Commission................................................................. 3
Common Stock............................................................... 3
Company.................................................................... 3
Company.................................................................... 3
Conversion Price........................................................... 3
Convertible Securities..................................................... 4
Corporate Trust Office..................................................... 4
corporation................................................................ 4
coupon..................................................................... 4
Debt Securities............................................................ 4
Defaulted Interest......................................................... 4
Depositary................................................................. 4
Designated Currency........................................................ 4
Dollar\ or................................................................. 4
ECU........................................................................ 4
Eligible Instruments....................................................... 4
Euroclear.................................................................. 4
European Communities....................................................... 5
Event of Default........................................................... 5
Exchange Rate.............................................................. 5
Exchange Rate Agent........................................................ 5
Exchange Rate Officer's Certificate........................................ 5
Foreign Currency........................................................... 5
Global Exchange Agent...................................................... 5
Global Exchange Date....................................................... 5
Global Security............................................................ 5
Holder..................................................................... 5
</TABLE>
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<TABLE>
<S> <C>
Indenture................................................................ 5
interest................................................................. 6
Interest Payment Date.................................................... 6
Maturity................................................................. 6
Officers' Certificate.................................................... 6
Opinion of Counsel....................................................... 6
Original Issue Discount Security......................................... 6
Outstanding.............................................................. 6
Paying Agent............................................................. 7
Perpetual Preferred Stock................................................ 7
Person................................................................... 7
Place of Payment......................................................... 7
Predecessor Security..................................................... 7
Redemption Date.......................................................... 7
Redemption Price......................................................... 8
Registered Security...................................................... 8
Regular Record Date...................................................... 8
Remarketing Entity....................................................... 8
Repayment Date........................................................... 8
Repayment Price.......................................................... 8
Responsible Officer...................................................... 8
Rights................................................................... 8
Security Register........................................................ 8
Senior Debt.............................................................. 8
Special Record Date...................................................... 9
Stated Maturity.......................................................... 9
Trust Indenture Act...................................................... 9
Trustee.................................................................. 9
United States............................................................ 9
United States Alien...................................................... 9
U.S. Government Obligations.............................................. 9
Section 102. Compliance Certificates and Opinions.......................... 10
Section 103. Form of Documents Delivered to Trustee........................ 10
Section 104. Acts of Holders............................................... 11
Section 105. Notices, etc., to Trustee and Company......................... 13
Section 106. Notice to Holders; Waiver..................................... 13
Section 107. Conflict with Trust Indenture Act............................. 13
Section 108. Effect of Headings and Table of Contents...................... 13
Section 109. Successors and Assigns........................................ 13
Section 110. Separability Clause........................................... 14
Section 111. Benefits of Indenture......................................... 14
Section 112. Governing Law................................................. 14
Section 113. Legal Holidays................................................ 14
Section 114. Counterparts.................................................. 14
</TABLE>
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<TABLE>
ARTICLE TWO
DEBT SECURITY FORMS
<S> <C>
Section 201. Forms Generally............................................................... 14
Section 202. Form of Trustee's Certificate of Authentication............................... 15
Section 203. Debt Securities in Global Form................................................ 15
ARTICLE THREE
THE DEBT SECURITIES
Section 301. Amount Unlimited; Issuance in Series.......................................... 16
Section 302. Denominations................................................................. 19
Section 303. Execution, Authentication, Delivery and Dating................................ 20
Section 304. Temporary Debt Securities..................................................... 22
Section 305. Registration; Registration of Transfer and Exchange........................... 25
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities......................... 28
Section 307. Payment of Interest; Interest Rights Preserved................................ 29
Section 308. Persons Deemed Owners......................................................... 31
Section 309. Cancellation.................................................................. 32
Section 310. Computation of Interest....................................................... 32
Section 311. Certification by a Person Entitled to Delivery of a Bearer Security........... 32
Section 312. Judgments..................................................................... 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture....................................... 33
Section 402. Application of Trust Money and Eligible Instruments........................... 35
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities of any Series....... 35
ARTICLE FIVE
REMEDIES
Section 501. Events of Default............................................................. 38
Section 502. Acceleration of Maturity; Rescission and Annulment............................ 39
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee............... 40
Section 504. Trustee May File Proofs of Claim.............................................. 41
Section 505. Trustee May Enforce Claims without Possession of Debt Securities or Coupons... 41
Section 506. Application of Money Collected................................................ 42
Section 507. Limitation on Suits........................................................... 42
Section 510. Rights and Remedies Cumulative................................................ 44
Section 511. Delay or Omission Not Waiver.................................................. 44
Section 512. Control by Holders of Debt Securities......................................... 44
Section 513. Waiver of Past Defaults....................................................... 44
Section 514. Undertaking for Costs......................................................... 45
Section 515. Waiver of Stay or Extension Laws.............................................. 45
</TABLE>
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<PAGE>
<TABLE>
ARTICLE SIX
THE TRUSTEE
<S> <C>
Section 601. Certain Duties and Responsibilities............................46
Section 602. Notice of Default..............................................46
Section 603. Certain Rights of Trustee......................................46
Section 604. Not Responsible for Recitals or Issuance of Debt Securities....47
Section 605. May Hold Debt Securities or Coupons............................48
Section 606. Money Held in Trust............................................48
Section 607. Compensation and Reimbursement.................................48
Section 608. Disqualification; Conflicting Interests........................49
Section 609. Corporate Trustee Required; Eligibility........................49
Section 610. Resignation and Removal; Appointment of Successor..............49
Section 611. Acceptance of Appointment by Successor.........................51
Section 612. Merger, Conversion, Consolidation or Succession to Business....52
Section 613. Preferential Collection of Claims Against Company..............52
Section 614. Authenticating Agent...........................................53
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......54
Section 702. Preservation of Information; Communications to Holders.........55
Section 703. Reports by Trustee.............................................55
Section 704. Reports by Company.............................................55
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc. Only on Certain Terms............56
Section 802. Successor Corporation Substituted..............................56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.............57
Section 902. Supplemental Indentures with Consent of Holders................58
Section 903. Execution of Supplemental Indentures...........................59
Section 904. Effect of Supplemental Indentures..............................60
Section 905. Conformity with Trust Indenture Act............................60
Section 906. Reference in Debt Securities to Supplemental Indentures........60
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest....................60
Section 1002. Maintenance of Office or Agency...............................60
Section 1003. Money for Debt Securities Payments to Be Held in Trust........62
Section 1004. Officers' Certificate as to Default...........................63
Section 1005. Waiver of Certain Covenants...................................63
Section 1006. Payment of Additional Amounts.................................64
</TABLE>
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<PAGE>
<TABLE>
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
<S> <C>
Section 1101. Applicability of Article............................................................................. 65
Section 1102. Election to Redeem; Notice to Trustee................................................................ 65
Section 1103. Selection by Trustee of Debt Securities to be Redeemed............................................... 65
Section 1104. Notice of Redemption................................................................................. 66
Section 1105. Deposit of Redemption Price.......................................................................... 66
Section 1106. Debt Securities Payable on Redemption Date........................................................... 67
Section 1107. Debt Securities Redeemed in Part..................................................................... 68
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article............................................................................. 68
Section 1202. Satisfaction of Sinking Fund Payments with Debt Securities........................................... 68
Section 1203. Redemption of Debt Securities for Sinking Fund....................................................... 69
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article............................................................................. 69
Section 1302. Repayment of Debt Securities......................................................................... 69
Section 1303. Exercise of Option; Notice........................................................................... 70
Section 1304. Election of Repayment by Remarketing Entities........................................................ 71
Section 1305. Securities Payable on the Repayment Date............................................................. 71
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
Section 1401. Purposes for Which Meetings May Be Called............................................................ 71
Section 1402. Call, Notice and Place of Meetings................................................................... 72
Section 1403. Persons Entitled to Vote at Meetings................................................................. 72
Section 1404. Quorum; Action....................................................................................... 72
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings.................................. 73
Section 1406. Counting Votes and Recording Action of Meetings...................................................... 74
ARTICLE FIFTEEN
DEFEASANCE
Section 1501. Termination of Company's Obligations................................................................. 75
Section 1502. Repayment to Company................................................................................. 76
Section 1503. Indemnity for Eligible Instruments................................................................... 76
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
Section 1601. Debt Securities Subordinate to Senior Debt........................................................... 76
Section 1602. Trustee and Holders of Debt Securities May Rely on Certificate of Liquidating Agent;
Trustee May Require Further Evidence as to Ownership of Senior Debt; Trustee Not
Fiduciary to Holders of Senior Debt.................................................................. 79
Section 1603. Payment Permitted If No Default...................................................................... 80
Section 1604. Trustee Not Charged with Knowledge of Prohibition.................................................... 80
Section 1605. Trustee to Effectuate Subordination.................................................................. 80
</TABLE>
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<TABLE>
<S> <C>
Section 1606. Rights of Trustee as Holder of Senior Debt........................................................... 80
Section 1607. Article Applicable to Paying Agents.................................................................. 81
Section 1608. Subordination Rights Not Impaired by Acts or Omissions of the Company
or Holders of Senior Debt............................................................................ 81
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
Section 1701. Applicability of Article............................................................................. 81
Section 1702. Right to Convert..................................................................................... 81
Section 1703. Exercise of Conversion Privilege; Delivery of Common Stock on
Conversion; No Adjustment for Interest or Dividends................................................................ 82
Section 1704. Cash Payments in Lieu of Fractional Shares........................................................... 83
Section 1705. Conversion Price..................................................................................... 83
Section 1706. Adjustment to Conversion Price....................................................................... 84
Section 1707. Effect of Reclassification, Consolidation, Merger or Sale............................................ 87
Section 1708. Taxes on Shares Issued............................................................................... 88
Section 1709. Shares to be Fully Paid; Compliance with Governmental Requirements;
Listing of Common Stock............................................................................................ 88
Section 1710. Responsibility of Trustee............................................................................ 89
Section 1711. Notice to Holders Prior to Certain Actions........................................................... 89
Section 1712. Covenant to Reserve Shares........................................................................... 90
Testimonium........................................................................................................103
signature and Seals................................................................................................103
Acknowledgements...................................................................................................104
Exhibit A-1........................................................................................................A-1
Exhibit A-2........................................................................................................A-2
Exhibit B..........................................................................................................B-1
</TABLE>
vi
<PAGE>
INDENTURE (the "indenture") dated as of __________________________,
between RELIASTAR FINANCIAL CORP., a Delaware corporation (the "company"),
having its principal place of business at 20 Washington Avenue South,
Minneapolis, Minnesota 55401 and _____________________________________________
________________, a national banking association (the "Trustee"), having its
Corporate Trust Office at _____________________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
subordinated debentures, notes, bonds and other evidences of indebtedness
(herein called the "Debt Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities, or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of
which this instrument was executed, except as provided in Section 905, 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, except
<PAGE>
as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an 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,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day," when used with respect to any Place of Payment, means
any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking
2
<PAGE>
institutions or trust companies in that Place of Payment are authorized or
obligated by law or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Closing Price" has the meaning specified in Section 1706(d).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means, when used with reference to the capital stock
of the Company, the class of stock which, at the date of execution of this
Indenture, is designated as common stock of the Company and stock of any class
or classes into which such common stock or any such other class may thereafter
be changed or reclassified. In case by reason of the operation of Article
Seventeen, the Convertible Securities shall be convertible into any other shares
or other securities or property of the Company or any other corporation, any
reference in this Indenture to the conversion of Convertible Securities pursuant
to Article Seventeen shall be deemed to refer to and include conversion of
Convertible Securities into such other shares or other securities or property.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company, or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 1705.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which any particular time its corporate trust business shall
be administered.
3
<PAGE>
The term "corporation" includes corporations, associations, companies
and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the coin or currency of the United States of
America 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.
"Eligible Instruments" means monetary assets, money market
instruments and securities that are payable in Dollars only and essentially risk
free as to collection of principal and interest, including U.S. Government
Obligations.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 301.
"Exchange Rate Officer's Certificate," with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Debt Securities, means a certificate
4
<PAGE>
setting forth the applicable Exchange Rate and the amounts payable in Dollars
and Foreign Currencies in respect of the principal of (and premium, if any) and
interest on Debt Securities denominated in ECU, any other composite currency or
Foreign Currency, and signed by the Chairman of the Board, a Vice Chairman of
the Board, the President, the Treasurer or any Assistant Treasurer of the
Company or the Exchange Rate Agent appointed pursuant to Section 301, and
delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or
part of a series of Debt Securities in accordance with Section 303.
"Holder," with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "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," with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Maturity," when used with respect to any Debt Security, means the
date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
5
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
counsel for the Company, or who may be other counsel acceptable to the Trustee,
which is delivered to the Trustee.
"Original Issue Discount Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Debt Securities and any
coupons appertaining thereto; provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered, or which have been
paid, pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt 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 relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt 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 (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Perpetual Preferred Stock" means any stock of any class of the
Company which has a preference over Common Stock in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily redeemable
or repayable, or redeemable or repayable at the option of the Holder,
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otherwise than in shares of Common Stock or Perpetual Preferred Stock of another
class or series or with the proceeds of the sale of Common Stock or Perpetual
Preferred Stock.
"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 Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Redemption Date," when used with respect to any Debt 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 Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 201 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Remarketing Entity," when used with respect to Debt Securities of
any series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date," when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
"Repayment Price," when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means
any officer of the Trustee assigned by it to administer its corporate trust
matters.
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"Rights" has the meaning specified in Section 1706(c).
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means (i) the principal, premium, if any, and interest
in respect of (A) indebtedness of the Company for money borrowed and (B)
indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by the Company; (ii) all capital lease obligations of the
Company; (iii) all obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Company and
all obligations of the Company under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of the Company for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar credit
transaction; (v) all obligations of the type referred to in clauses (i) through
(iv) of other Persons for the payment of which the Company is responsible or
liable as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any lien on
any property or asset of the Company (whether or not such obligation is assumed
by the Company), except for (1) any such indebtedness that is by its terms pari
----
passu with the Debt Securities, and (2) any Trust Related Securities.
- -----
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"Trust Related Securities" means any obligations evidenced by debt
securities (and guarantees in respect of those debt securities) initially issued
to any trust, or a trustee of a trust, partnership or other entity affiliated
with the Company that is, directly or indirectly, a financing vehicle of the
Company in connection with the issuance by such entity of preferred securities
or other similar securities.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
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"United States" means the United States of America (including the
District of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee, if so requested by 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 shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definition 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 or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition 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.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is 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 opinions or representations with respect to such
matters is 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 104. 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 an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or
in part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Fourteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 1406.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, 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 depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
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 (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debt Security.
(g) For purposes of determining the principal amount of Outstanding
Debt Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of
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the date such Act is delivered to the Trustee and, where it is hereby expressly
required, to the Company, by Holders of the required aggregate principal amount
of the Outstanding Debt Securities of such series (or, if there is no such rate
on such date, such rate on the date determined as specified as contemplated in
Section 301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other 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 made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Division, 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 the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
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In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice by publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity of any Debt Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or coupons) payment of interest or principal
(and premium, if any) 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 the Interest Payment Date,
Redemption Date, Repayment Date or at the Stated Maturity, and no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date or Stated Maturity, as the case may be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures
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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 as may, consistently herewith, be
determined by the officers executing such Debt Securities or coupons, as
evidenced by their signatures on the Debt Securities or coupons. If the form of
Debt Securities of any series or coupons (including any such Global Security) is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action 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 303 or the
authentication and delivery of such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt 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 Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
[_______________________________________]
as Trustee
By________________________________________________
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (12) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any
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increase or decrease in the amounts, of Outstanding Debt Securities represented
thereby shall be made in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306,
906, 1107, 1303 or 1703 and except for any Debt Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date
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or dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable, the Regular Record Date for the
interest payable on any Registered Security on any Interest Payment Date
and the circumstances, if any, in which the Company may defer interest
payments;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Debt Securities of the series and this
Indenture may be served and where notices to Holders pursuant to Section
106 will be published;
(6) if applicable, the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(9) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(10) if Debt Securities of the series are to be issuable initially in
the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Debt Securities
and whether the definitive Debt Securities will be Registered and/or Bearer
Securities and will be in global form and whether interest in respect of
any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Global Exchange Date shall be paid to any
clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
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(11) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1006;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the denomination
of $5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) the currency or currencies of denomination of the Debt Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(15) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and Exchange Rate Agent;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index based on a currency or currencies other than that in
which the Debt Securities are denominated or designated to be payable, the
manner in which such amounts shall be determined;
(17) if payments of principal of (and premium, if any) or interest on
the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined or if the Exchange Rate is to be determined otherwise than as
provided in Section 101;
(18) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(19) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of Debt Securities
of the series in lieu of any covenant or warranty set forth herein for the
benefit of Debt Securities of all series, or any provision that any
covenant or
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warranty set forth herein for the benefit of Debt Securities of all series
shall not be for the benefit of Debt Securities of such series, or any
combination of such covenants, warranties or provisions and the
applicability, if any, of the provisions of Section 1005 to such covenants
and warranties;
(20) the terms and conditions, if any, pursuant to which the Company's
obligations under this Indenture may be terminated through the deposit of
money or Eligible Instruments as provided in Articles Four and Fifteen;
(21) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee;
(22) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price and
the date on which the right to convert expires; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action 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
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
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series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by
its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt 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
Debt Securities or coupons of any series or did not hold such offices at the
date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery
of this Indenture, Debt Securities of any series may be executed by the Company
and delivered to the Trustee for authentication, and, except as otherwise
provided in this Article Three, shall thereupon be authenticated and delivered
by the Trustee upon Company Order, without any further action by the Company;
provided, however, that, in connection with its original issuance, a Bearer
Security may be delivered only outside the United States and, except in the case
of a temporary Global Security, only if the Company or its agent shall have
received the certification required pursuant to Sections 304(b)(iii) and (iv),
unless such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
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(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of
the Debt Securities of such series and coupons, if any, pursuant to
Sections 201 and 301 and stating that all conditions precedent provided for
in this Indenture relating to the issuance of such Debt Securities have
been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if any,
has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if any,
have been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 301 in conformity with
the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, 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 binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and the application of general principles of equity and
except further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Debt 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 (ii) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, 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 Global Securities in permanent
or temporary form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
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(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel at the time
of issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, 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 Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt
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Securities. In the case of Debt Securities of any series issuable as Bearer
Securities, such temporary Debt Securities may be in global form, representing
all or any part of the Outstanding Debt Securities of such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global form,
if temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in
exchange for a Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary global
form, any such temporary Global Security shall, unless otherwise provided
pursuant to Section 301, be delivered to the Depositary for the benefit of
Euroclear and CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Debt Securities (or to such other accounts as
they may direct).
(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Debt Securities (the "Global Exchange
Agent"), in an aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the
Global Exchange Date, such temporary Global Security shall be surrendered
by the Depositary to the Global Exchange Agent, to be exchanged, in whole
or from time to time in part, for definitive Debt Securities without charge
and the Trustee or the Global Exchange Agent, if authorized by the Trustee
pursuant to Section 614, shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part of
such temporary Global Security for definitive Debt Securities, the portion
of the principal amount and any interest thereon so exchanged shall be
endorsed by the Global Exchange Agent on a schedule to such temporary
Global Security, whereupon the principal amount
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and interest payable with respect to such temporary Global Security shall
be reduced for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, global
registered form or global bearer form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination thereof
is so specified, as requested by the beneficial owner thereof; provided,
however, that, in the case of the exchange of the temporary Global Security
for definitive Bearer Securities (including a definitive Global Bearer
Security), upon such presentation by the Depositary, such temporary Global
Security shall be accompanied by a certificate signed by Euroclear as to
the portion of such temporary Global Security held for its account then to
be exchanged and a certificate signed by CEDEL S.A. as to the portion of
such temporary Global Security held for its account then to be exchanged,
each in the form set forth in Exhibit B to this Indenture, unless such
certificate(s) shall have been provided earlier pursuant to section
304(b)(v) hereof; and provided, further, that definitive Bearer Securities
(including a definitive Global Bearer Security) shall be delivered in
exchange for a portion of a temporary Global Security only in compliance
with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a series
in a temporary Global Security shall be exchanged for definitive Debt
Securities of the same series and of like tenor and terms following the
Global Exchange Date when the account holder instructs Euroclear or CEDEL
S.A., as the case may be, to request such exchange on such account holder's
behalf and, in the case of the exchange of the temporary Global Security
for definitive Bearer Securities (including a definitive Global Bearer
Security), unless such certificate(s) shall have been provided earlier
pursuant to Section 304(b)(v) hereof, the account holder delivers to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form set
forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no
earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and CEDEL S.A. Definitive
Debt Securities in bearer form to be delivered in exchange for any portion
of a temporary Global Security shall be delivered only outside the United
States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same
series and of like tenor and terms authenticated and delivered hereunder,
except that interest payable on a temporary Global Security on an Interest
Payment Date shall be payable to Euroclear and CEDEL S.A. on such Interest
Payment Date only if there has been delivery by Euroclear and CEDEL S.A. to
the Global Exchange Agent of a certificate or certificates in the form set
forth in Exhibit B to this Indenture dated no earlier than the first
Interest Payment Date, for credit
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without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL S.A., as the case may be, a certificate in
the form set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture
dated no earlier than the first Interest Payment Date. Any interest so
received by Euroclear and CEDEL S.A. and not paid as herein provided prior
to the Global Exchange Date shall be returned to the Global Exchange Agent
which, upon expiration of two years after such Interest Payment Date, shall
repay such interest to the Company in accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies
to be maintained by the Company in accordance with the provisions of this
Section 305 and Section 1002, with respect to the Debt Securities of each series
which are Registered Securities, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized form and denomination, of like tenor and terms and aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at
such office or agency. Bearer Securities may not be delivered in exchange for
Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 301 with respect to a Bearer
Security in global form) of the same series, of any authorized form and
denomination and of like tenor and terms and aggregate principal amount, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company and the Trustee in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may
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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 1002, 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 a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor and terms after the close of business at such office or agency of (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.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt 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 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
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(a) to each Person specified by such Depositary a new Debt Security
or Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt 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 Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt 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 transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed for a
period of fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities
of such series selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (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 such Registered 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
like tenor and terms of that series, provided that such Registered Security
shall be simultaneously surrendered for redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in
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exchange for any such mutilated Debt Security or Bearer Security with a
mutilated coupon appertaining to it or to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or stolen)
or in lieu of any such destroyed, lost or stolen Debt Security, a new Debt
Security of like tenor and terms and principal amount, bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupon, if any,
appertaining to such destroyed, lost or stolen Debt Security or to the Debt
Security to which such destroyed, lost or stolen coupon appertains; provided,
however, that any such new Bearer Security will be delivered only in compliance
with the conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006) shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt
Security, or in exchange for a Bearer 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 Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest 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 Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer
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Security shall be surrendered without the coupon relating to such Interest
Payment Date and interest will not be payable on such Interest Payment Date 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. At the option of the Company, payment of
interest on any Registered Security may be made by check in the currency
designated for such payment pursuant to the terms of such Registered Security
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account in such
currency designated by such Person in writing not later than ten days prior to
the date of such payment.
Any interest on any Registered Security 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 registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holder
of such Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money and/or Eligible Instruments when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date. Unless the Trustee is acting as the
Security Registrar, promptly after such Special Record Date, the Company
shall furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such series
held by, the Holders appearing on the Security Register at the close of
business on such Special Record Date. In the name and at the expense of
the Company, the Trustee 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 Registered Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special
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Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
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, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of 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 (and premium, if any) and (subject to Section 307)
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
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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, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities,
all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a
Bearer Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification be given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 301, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
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Currency") as may be specified pursuant to Section 301 is of the essence and
agrees that judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if any) and interest on
such Debt Securities and any appurtenant coupons shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking community in the
case of a composite currency on the Business Day immediately following the day
on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect, including the provisions of Article Sixteen hereof (except as to any
surviving rights of registration of transfer or exchange of Debt Securities
herein expressly provided for and rights to receive payments of principal and
interest thereon and any right to receive additional amounts, as provided in
Section 1006) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(A) all Debt Securities theretofore authenticated and delivered
and all coupons appertaining thereto (other than (i) 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 305,
(ii) Debt Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate, surrender
of which has been waived as provided in Section 1106 or 1303 and (iv)
Debt Securities and coupons for whose payment money and/or Eligible
Instruments have theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from
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such trust, as provided in Section 1003) have been delivered to the
Trustee cancelled or for cancellation; or
(B) all such Debt Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) 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 (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge the entire indebtedness on such
Debt Securities and coupons of such series for principal (and premium,
if any) and interest, and any mandatory sinking fund, repayment or
analogous payments thereon, on the scheduled due dates therefor to the
date of such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt Securities
repayable at the option of the Holders thereof); provided, however,
that in the event a petition for relief under the Bankruptcy Reform
Act of 1978 or a successor statute is filed with respect to the
Company within 91 days after the deposit, the obligations of the
Company under the Indenture with respect to the Debt Securities of
such series shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited money and
Eligible Instruments to the Company;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Eligible Instruments shall have been deposited with
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the Trustee pursuant to Subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Money and Eligible Instruments.
Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
401, 403 or 1501 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt 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 (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Debt Securities of any series, then, notwithstanding Section
401, (i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Sixteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of that series on that day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Debt Securities, the Company's obligations with respect to such Debt
Securities under Sections 304, 305, 306, 1002, 1003 and 1006 and the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including those
under Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Order, execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Section 403 applicable to
it) irrevocably, as trust funds in trust, money and/or to the extent
such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability will
be imposed upon the Trustee or the
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Holders of such Debt Securities) will provide money in such amounts as
will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay and discharge (i)
the principal of (and premium, if any) and interest on the Outstanding
Debt Securities of that series and related coupons on the Stated
Maturity of such principal or interest or, if such series may be
redeemed by the Company prior to the Stated Maturity thereof and the
Company shall have given irrevocable instructions to the Trustee to
effect such redemption, at the date fixed for such redemption pursuant
to Article Eleven, and (ii) any mandatory sinking fund payments or
analogous payments applicable to Debt Securities of such series on the
date on which such payments are due and payable in accordance with the
terms of this Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing on
the date of such deposit and no Event of Default under Section 501(1) or
Section 501(2) or event which, with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 501(1) or Section
501(2) shall have occurred and be continuing on the 91st day after such
date;
(5) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date
of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities and related
coupons of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge
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;
(6) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted;
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(7) such deposit shall have been effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301; and
(8) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, 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 any installment of interest
upon any of the Debt Securities of such series, as and when the same shall
become due and payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an interest payment
-------- -------
period by the Company in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of
interest for this purpose; or
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of such series, as and when
the same shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series; provided, however,
-------- -------
that a valid extension of the maturity of such Debt Securities in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of principal or premium, if any; or
(3) if applicable to the Debt Securities of such series, failure by
the Company to issue Common Stock upon an election by the Holder or Holders
of such Debt Securities to convert such Debt Securities into shares of
Common Stock pursuant to the provisions of any indenture supplemental
hereto, Board Resolution or other instrument authorizing such series of
Debt Securities; or
(4) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(5) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or the consent by
the Company to the entry of a decree or order for relief in an involuntary
case under any such law; or
(6) any other Event of Default, if any, provided with respect to Debt
Securities of such series specified as contemplated by Section 301.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment 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 principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt Securities
of such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt Securities of such
series have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security or any related coupon 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 Debt Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series, or
(4) default is made in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of series of Debt Securities other
than such series), and such default or breach continues for 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 principal amount of the Outstanding Debt Securities of such
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,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest, sinking fund installment and interest and, to the extent that payment
of such interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and, upon overdue installments of interest, at
the rate or rates prescribed therefor in such Debt Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment of final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and coupons, wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities of such
series and any related coupons by such appropriate
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judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or coupons or the production thereof in
any proceeding relating thereto, and any such
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proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities and coupons in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of amounts then due and unpaid to the holders
of Senior Debt, to the extent required by Article Sixteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities and
any coupons, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively.
The Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons
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) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of such
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such 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 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 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder, subject, however, to the provisions of
Article Sixteen.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings 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 the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
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.
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
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(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Company or the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security or the payment of any coupons on or after
the respective Stated Maturity or Maturities expressed in such Debt Security or
coupon (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law whenever 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 benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided in
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any
series the Trustee shall transmit by mail to all Holders of Debt Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or any related coupons or in the payment of any sinking
fund installment with respect to Debt Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Debt Securities
of such series. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any signature, resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action
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hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of such series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, 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,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying
Agent shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not
be responsible for and makes no representations as to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
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SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder which shall have been separately
agreed to by the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
claim, loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a claim prior to the Debt Securities
and any coupons upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons. The claims of
the Trustee under this Section shall not be subject to the provisions of Article
Sixteen.
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SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under this Indenture with respect to Debt Securities of any particular
series of Debt Securities other than that series or the Indentures dated as of
_________________________.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid 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 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with respect to
the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series 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 for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt 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 Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and
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the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
the Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 514, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt 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 Debt
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 (3) shall add
to or change any of the
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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 Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on the
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 Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of 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 executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Debt Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
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SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication 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 must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States, any State thereof or the District of
Columbia, having a combined capital and surplus of at least $1,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by Federal or State authorities or the equivalent foreign authority
in the case of an authenticating agent who is not organized and doing business
under the laws of the United States, any State thereof or the District of
Columbia.
The Trustee hereby initially appoints _________________________ as its
authenticating agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
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 an authenticating agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee promptly
may appoint a successor authenticating agent. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with all
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 Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall
be applicable to any authenticating agent.
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Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
[____________________________________________]
By _______________________________________
As Authenticating Agent for the Trustee
By _______________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record Date
in respect of the Debt Securities of such series or on May 15 and November
15 of each year with respect to each series of Debt Securities for which
there are no Regular Record Dates, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Registered
Securities as of such Regular Record Date or May 1 or November 1, as the
case may be, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Debt Securities pursuant to this Indenture
and at any other time required by the Trust Indenture Act, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture and such other matters as may be required pursuant to the Trust
Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series as
permitted by Sections 201 and 301; or
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(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(9) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Debt Securities of any series or any appurtenant
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security or coupon
affected thereby,
(1) change the Stated Maturity of the principal or any installment of
principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment, or the
coin or currency in which any Debt Security or the interest thereon or any
coupon is payable, or 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 or repayment, on or after the Redemption Date or Repayment
Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
such supplemental
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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, or reduce
the requirements of Section 1404 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1005, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1005, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Convertible Securities of any
series to convert such Debt Securities pursuant to Article Seventeen;
and provided, further, that no change shall be made in the provisions of Article
Sixteen that will affect adversely the holders of Senior Debt without the
consent of the holders of all Senior Debt Outstanding.
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 Debt Securities, or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
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.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities 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 Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Debt Securities and any appurtenant coupons that it will duly and punctually pay
the principal of (and premium, if any) and interest on the Debt Securities and
any appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer Securities
on or before Maturity, other than additional amounts, if any, payable as
provided in Section 1006 in respect of principal of (or premium, if any, on)
such a Debt Security, shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be
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presented or surrendered for payment, where Debt Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Debt Securities and this Indenture may be
served. If Debt Securities of a series are issuable as Bearer Securities, the
Company will maintain, subject to any laws or regulations applicable thereto, an
office or agency in a Place of Payment for such series which is located outside
the United States where Debt Securities of such series and the related coupons
may be presented and surrendered for payment (including payment of any
additional amounts payable on Debt Securities of such series pursuant to Section
1006); provided, however, that if the Debt Securities of such series are listed
on The Stock Exchange of the United Kingdom and the Republic of Ireland or 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 in London or Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Debt Securities of such
series are listed on such exchange. 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 or demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee its agent to receive all presentations, surrenders, notices
and demands, except that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment (including payment of any
additional amounts payable on Bearer Securities of that series pursuant to
Section 1006) at the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, payment
of principal of and any premium and interest denominated in Dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices 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 and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Debt Securities, at
the option of the Holder of any Bearer Security or related coupon, payment may
be made by check in the currency designated for such payment pursuant to the
terms of such Bearer Security presented or mailed to an address outside the
United States or by transfer to an account in such currency maintained by the
payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the Debt
Securities of one or more series and any appurtenant coupons (subject to the
preceding paragraph) 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 any series of Debt
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Securities for such purposes. The Company will give prompt written notice to the
Trustee of any such designation and any change in the location of any such other
office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of
Debt 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 (and
premium, if any) or interest on Debt Securities of such series and any
appurtenant coupons 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 Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series or any appurtenant
coupons; 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 terminating its
obligations under this Indenture with respect to Debt Securities of any series
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
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by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any principal and interest received on the Eligible Instruments
deposited with the Trustee or any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and 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 Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), 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 an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, 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 or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
SECTION 1005. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition applicable to the Debt Securities of any series that is
determined pursuant to Section 301 to be subject to this provision if, before
the time for such compliance the Holders of at least a majority in principal
amount of the Debt Securities at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
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SECTION 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities 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 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
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SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at
such place or places which are outside the United States, except as
otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company, or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. 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, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability
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will be imposed upon the Trustee or the Holders of the Debt Securities to be
redeemed) will provide money on or prior to the Redemption Date in such amounts
as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 1002, unless otherwise
specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities 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 Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt 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 upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that 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 Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
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 without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt 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 Debt Security.
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SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
as contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 term of Debt Securities of any series is herein referred to an
"optional sinking fund payment." If provided for by the terms of Debt
Securities of any series, the amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt
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Securities in lieu of cash payments pursuant to this Section 1202, the principal
amount of Debt Securities to be redeemed in order to exhaust the aforesaid cash
payment shall be less than $100,000, the Trustee need not call Debt Securities
for redemption, except upon Company Request, and such cash payment shall be held
by the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund .
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), 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, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part
at the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
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SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt Security to be repaid
in whole or in part together with written notice of the exercise of such option
at any office or agency of the Company in a Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment 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 Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
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Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, at any time prior to any Repayment Date to designate one or more
Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
SECTION 1305. Securities Payable on the Repayment Date .
Notice of exercise of the option of repayment having been given and
the Debt Securities so to be repaid having been surrendered as aforesaid, such
Debt Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt Securities of such series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Debt Securities of such series.
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SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Debt Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be
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reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series, provided however, that, except as limited by the proviso to Section 902,
any resolution with respect to any demand, consent or waiver or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; and provided, further, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other Act which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Debt Securities of such series in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by
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Holders of Debt Securities as provided in Section 1402(b), in which case the
Company or the Holders of Debt Securities of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairperson. A
permanent chairperson and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Debt Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1401. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Termination of Company's Obligations.
If this Section 1501 is specified, as contemplated by Section 301, to
be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due dates therefor at the Stated Maturity thereof, the Company's obligations
under any covenant determined pursuant to Section 301 to be subject to this
Section shall terminate with respect to the Debt Securities of the series for
which such deposit was made; provided, however, that (i) no Event of Default
with respect to the Debt Securities of such series under Section 501(1) or
Section 501(2) or event that with notice or lapse of time or both would
constitute such an Event of Default shall have occurred and be continuing on
such date, (ii) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound, and (iii) such termination shall not
relieve the Company of its obligations under the Debt Securities of such series
and this Indenture to pay when due the principal of (and premium, if any) and
interest and additional amounts on such Debt Securities and any coupons
appertaining thereto if such Debt Securities or coupons are not paid (or payment
is not provided for) when due from the money and Eligible Instruments (and the
proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the
effect that: (a) Holders of Debt Securities of such series and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and termination and (b) such Holders
(and future Holders) will be subject to tax in the same amount, manner and
timing as if such deposit and termination had not occurred, (ii) an Officers'
Certificate to the effect that under the laws in effect on the date such money
and/or Eligible Instruments are deposited with the Trustee, the amount thereof
will be sufficient, after payment of all Federal, state and local taxes in
respect thereof payable by the Trustee, to pay principal (and premium, if any)
and interest when due on the Debt Securities of such series and any coupons
appertaining thereto; and (iii) an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated in this Section have been complied with.
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It shall be an additional condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's obligations pursuant
to the provisions of this Section under any covenant determined pursuant to
Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed on the New York Stock Exchange, that the Company
deliver an Opinion of Counsel that the Debt Securities of such series will not
be delisted from the New York Stock Exchange as a result of such deposit and
termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under any covenant determined pursuant to Section 301 to be
subject to this Section.
SECTION 1502. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money or Eligible Instruments not required for the
payment of the principal of (and premium, if any) and interest on the Debt
Securities of any series and any related coupons for which money or Eligible
Instruments have been deposited pursuant to Section 1501 held by them at any
time.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1501. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1503. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1601. Debt Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything in this Indenture or
the Debt Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Debt Securities of each series and any coupons
appurtenant thereto is subordinate and junior in right of payment to all Senior
Debt to the extent provided herein, and each Holder of Debt Securities of each
series and coupons appurtenant thereto, by such Holder's acceptance thereof,
likewise
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covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Debt shall continue to be Senior Debt and entitled
to the benefits of these subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Debt or extension or renewal of
the Senior Debt.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Debt when the same
become due and payable, whether at maturity or at a date fixed for prepayment or
by declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the Holders of Senior Debt or any trustee therefor,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities,
by set-off or otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest on any of the Debt Securities, or
in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Debt Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. 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 readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt 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 these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Debt Securities and coupons appurtenant thereto, together
with the holders of any obligations of the Company ranking on a parity with the
Debt
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Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if any) and interest on the Debt Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Company ranking junior to the Debt Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, 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 readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan or reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in
the right to enforce subordination of the indebtedness evidenced by the Debt
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Debt Securities and
coupons appurtenant thereto or prevent the Trustee or the Holder from exercising
all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt 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 Debt then outstanding. Upon the payment in full of
all Senior Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Debt Securities of such
series and coupons appertaining thereto, if any, shall have been paid in full,
and such payments or distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Debt shall, as between the Company and
its creditors other than the holders of Senior Debt, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by the Company on account
of Senior Debt, and not on account of the Debt Securities of such series.
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The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of this Section 1601 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Debt Securities or ranking junior to the Debt Securities, shall
not be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Debt Securities or ranking junior to
the Debt Securities.
SECTION 1602. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Debt;
Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered 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 Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Sixteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payments or distributions pursuant to this Article Sixteen,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person
under this Article Sixteen, and if such evidence is not furnished, the Trustee
may offer any payment to such Person pending judicial determination as to the
right of such Person to receive payment. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt.
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SECTION 1603. Payment Permitted If No Default.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture, or in any of the Debt Securities, shall prevent (a) the Company at
any time, except during the pendency of any dissolution, winding up, liquidation
or reorganization proceedings referred to in, or under the conditions described
in, Section 1601, from making payments of the principal of (or premium, if any)
or interest on the Debt Securities or (b) the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to payments of the
principal of or interest on the Debt Securities, if, at the time of such
deposit, the Trustee or such Paying Agent, as the case may be, did not have the
written notice provided for in Section 1604 of any event prohibiting the making
of such deposit, or if, at the time of such deposit (whether or not in trust) by
the Company with the Trustee or any Paying Agent (other than the Company) such
payment would not have been prohibited by the provisions of this Article, and
the Trustee or any Paying Agent shall not be affected by any notice to the
contrary received by it on or after such date.
SECTION 1604. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Sixteen or elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1601 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior Debt who
shall have been certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to which such
Senior Debt shall be outstanding. The Company shall give prompt written notice
to the Trustee and to the Paying Agent of any facts which would prohibit the
payment of money to or by the Trustee or any Paying Agent.
SECTION 1605. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such Holder's acceptance
thereof authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1606. Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt which may at the time be held by it, to
the same extent as any other holder of Senior Debt; provided that nothing in
this Article shall deprive the Trustee of any rights as such holder and provided
further that nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
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SECTION 1607. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 1604 and 1606 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1608. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Debt may, at any time or from
time to time and in their absolute discretion, change the manner, place or terms
of payment, change or extend the time of payment of, or renew or alter, any such
Senior Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Debt including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Debt Securities or the
Trustee and without affecting the obligations of the Company, the Trustee or the
Holders of the Debt Securities under this Article.
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1701. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
SECTION 1702. Right to Convert.
Subject to and upon compliance with the provisions of this Article,
the Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof or in an
indenture supplemental hereto, as the case may be (or if such Convertible
Security is called
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for redemption or submitted for repayment, then in respect of such Convertible
Security to and including but not after the close of business on the Redemption
or Repayment Date, as the case may be, unless the Company shall default in the
payment due), to convert the principal amount of any such Convertible Security,
or, in the case of any Convertible Security of a denomination greater than
$1,000, any portion of such principal which is $1,000 or an integral multiple
thereof, into that number of fully paid and nonassessable shares of Common Stock
(as such shares shall then be constituted) obtained by dividing the principal
amount of the Convertible Security or portion thereof surrendered for conversion
by the Conversion Price, by surrender of the Convertible Security so to be
converted in whole or in part in the manner provided in Section 1703. Such
conversion shall be effected by the Company.
SECTION 1703. Exercise of Conversion Privilege; Delivery of Common
Stock on Conversion; No Adjustment for Interest or
Dividends.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company pursuant
to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion, in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 1708. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or such Holder's duly
authorized attorney.
As promptly as practicable after the surrender of such Convertible
Security and the receipt of such notice and funds, if any, as aforesaid, the
Company shall deliver at such office or agency to such Holder, or on such
Holder's written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof in accordance with the provisions of this Article and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion as provided in Section 1704. In case any Convertible
Security of a denomination greater than $1,000 shall be surrendered for partial
conversion and subject to Section 302, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on
which such Convertible Security shall have been surrendered (accompanied by the
funds, if any, required by the last paragraph of this Section) and such notice
shall have been received by the Company, as aforesaid, and the person in whose
name any certificate or certificates for shares of Common Stock
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shall be registrable upon such conversion shall be deemed to have become on said
date the holder of record of the shares represented thereby; provided however,
that any such surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the person in whose name the certificates are
to be registered as the record holder thereof for all purposes on the next
succeeding day on which stock transfer books are open, but such conversion shall
be at the Conversion Price in effect on the date upon which such Convertible
Security shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment on a date in such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Company, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Convertible Securities.
An amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Convertible Security on such Regular Record
Date, provided, however, that if the Company shall default in the payment of
interest on such Interest Payment Date, such amount shall be paid to the person
who made such required payment. Except as provided above in this Section, no
adjustment shall be made for interest accrued on any Convertible Security
converted or for dividends on any shares issued upon the conversion of such
Convertible Security as provided in this Article.
SECTION 1704. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1705. Conversion Price.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
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SECTION 1706. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding Common Stock into a greater number
of securities (including Common Stock), or (iii) combine or reclassify its
outstanding Common Stock into a smaller number of securities (including
Common Stock), the Conversion Price in effect immediately prior thereto
shall be adjusted so that the Holder of any Convertible Security thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned
or have been entitled to receive after the happening of any of the events
described above had such Convertible Security been converted immediately
prior to the happening of such event. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of a subdivision or combination. If, as a
result of an adjustment made pursuant to this subsection (a), the Holder of
any Convertible Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors (whose determination shall be conclusive
and shall be described in a written statement filed with the Trustee and
any conversion agent) shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made
pursuant to this subsection (a) of this Section 1706, the Holder of any
Convertible Security thereafter converted shall become entitled to receive
any shares or other securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so received upon
conversion of any Convertible Security shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Common Stock contained in
this Section 1706, and other provisions of this Article Seventeen with
respect to the shares of Common Stock shall apply on like terms to any such
other shares or other securities.
(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring within
45 days after such record date) to subscribe for or purchase Common Stock
at a price per share (or a conversion price per share) less than the
current market price per share of Common Stock (as defined in subsection
(d) below) at such record date, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to such record date by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
shares so offered (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at
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such current market price, and of which the denominator shall be the number
of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered for subscription or purchase
(or into which the convertible securities so offered are initially
convertible). Such adjustment shall be made successively whenever such a
record date is fixed, and shall become effective immediately after such
record date. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than
such current market price, and in determining the aggregate offering price
of such shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors. Common Stock owned by or held for the account of the Company or
any majority owned subsidiary shall not be deemed outstanding for the
purpose of any adjustment required under this subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its
indebtedness or assets (excluding regular quarterly or other periodic or
recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings of the Company or dividends or
distributions referred to in subsection (a) above) or rights or warrants to
subscribe or purchase (excluding those referred to in subsection (b)
above), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the current market price per share
(as defined in subsection (d) below) of the Common Stock on such record
date less the then fair market value (as determined by the Board of
Directors whose determination shall be conclusive, and described in a
certificate filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator shall be the
current market price per share (as defined in subsection (d) below) of the
Common Stock. Such adjustment shall be made successively whenever such a
record date is fixed and shall become effective immediately after such
record date. Notwithstanding the foregoing, in the event that the Company
shall distribute any rights or warrants to acquire capital stock ("Rights")
pursuant to this subsection (c), the distribution of separate certificates
representing such Rights subsequent to their initial distribution (whether
or not such distribution shall have occurred prior to the date of the
issuance of such Convertible Securities) shall be deemed to be the
distribution of such Rights for purposes of this subsection (c); provided
that the Company may, in lieu of making any adjustment pursuant to this
subsection (c) upon a distribution of separate certificates representing
such Rights, make proper provision so that each Holder of such Convertible
Security who converts such Convertible Security (or any portion thereof)
(i) before the record date for such distribution of separate certificates
shall be entitled to receive upon such conversion shares of Common Stock
issued with Rights and (ii) after such record date and prior to the
expiration, redemption or termination of such Rights, shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock
issuable upon such conversion, the same number of such Rights as would a
holder of the number of shares of Common Stock that such Convertible
Security so converted would have entitled the
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holder thereof to purchase in accordance with the terms and provisions of
and applicable to the Rights if such Convertible Security were converted
immediately prior to the record date for such distribution. Common Stock
owned by or held for the account of the Company or any majority owned
subsidiary shall not be deemed outstanding for the purpose of any
adjustment required under this subsection (c).
(d) For the purpose of any computation under subsection (b) and
(c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily Closing Prices for the
thirty consecutive days (which are not legal holidays as defined in Section
113) commencing forty-five days (which are not legal holidays as defined in
Section 113) before the day in question. The Closing Price for any day
shall be (i) if the Common Stock is listed or admitted for trading on any
national securities exchange, the last sale price (regular way), or the
average of the closing bid and ask prices if no sale occurred, of Common
Stock on the principal securities exchange on which the Common Stock is
listed, or, if not listed or admitted to trading on any national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ"), (ii) if
not listed or quoted as described in (i), the mean between the closing high
bid and low asked quotations of Common Stock reported by NASDAQ, or any
similar system or automated dissemination of quotations of securities
prices then in common use, if so quoted, or (iii) if not quoted as
described in clause (ii), the mean between the high bid and low asked
quotations for Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and
asked quotations for Common Stock on at least 5 of the 10 preceding days.
If none of the conditions set forth above is met, the Closing Price of
Common Stock on any day or the average of such Closing Prices for any
period shall be the fair market value of Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by the Company.
(e)(i) Nothing contained herein shall be construed to require an
adjustment in the Conversion Price as a result of the issuance of Common
Stock pursuant to, or the granting or exercise of any rights under, the
Dividend Reinvestment and Optional Cash Payment Plan of ReliaStar Financial
Corp.
(ii) In addition, no adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by
reason of this subsection (e)(ii) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment,
further provided, however, that any adjustments which by reason of this
subsection (e)(ii) are not otherwise required to be made shall be made no
later than 3 years after the date on which occurs an event that requires an
adjustment to be made or carried forward.
(iii) All calculations under this Article Seventeen shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case
may be. Anything in this Section 1706 to the contrary notwithstanding, the
Company shall be entitled to make such
86
<PAGE>
reductions in the Conversion Price, in addition to those required by this
Section 1706, as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares, distribution of
rights to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the Company to
its shareholders shall not be taxable.
(f) Whenever the Conversion Price is adjusted, as herein provided,
the Company shall promptly file with the Trustee and any conversion agent
other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date
on which such adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the Holder of each Convertible
Security at such Holder's last address appearing on the Security Register
provided for in Section 305 of this Indenture.
(g) In any case in which this Section 1706 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i)
delivering to the Holder of any Convertible Security converted after such
record date and before the occurrence of such event the additional shares
of Common Stock deliverable upon such conversion by reason of the
adjustment required by such event over and above the Common Stock
deliverable upon such conversion before giving effect to such adjustment
and (ii) paying to such Holder any amount in cash in lieu of any fraction
pursuant to Section 1704, provided, however, that the Company shall deliver
to such Holder a due bill or other appropriate instrument evidencing such
Holder's rights to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment. If such event does not
occur, no adjustments shall be made pursuant to this Section 1706.
SECTION 1707. Effect of Reclassification, Consolidation, Merger or
Sale.
If any of the following events occur, namely (i) any reclassification
or change of outstanding shares of Common Stock deliverable upon conversion of
the Convertible Securities (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination, but including any change in the shares of Common
Stock into two or more classes or series of securities), (ii) any consolidation
or merger to which the Company is a party (other than a consolidation or merger
in which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination) in, outstanding shares of its Common Stock) or
(iii) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the Company, or
such successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act as in force at the date of execution of such supplemental indenture and
comply with the provisions of Article Nine) providing that each Convertible
Security shall be convertible into
87
<PAGE>
the kind and amount of shares of stock and other securities or property,
including cash, receivable upon such reclassification, change, consolidation,
merger, sale or conveyance by a holder of a number of shares of Common Stock
deliverable upon conversion of such Convertible Securities immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article. The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Convertible Securities, at such
holder's address appearing on the Security Register provided for in Section 305
of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
SECTION 1708. Taxes on Shares Issued.
The delivery of stock certificates on conversions of Convertible
Securities shall be made without charge to the Holder converting a Convertible
Security for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the delivery of stock registered in any name other than of
the Holder of any Convertible Security converted, and the Company shall not be
required to deliver any such stock certificate unless and until the person or
persons requesting the delivery thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 1709. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Convertible Securities hereunder
require registration with or approval of any governmental authority under any
Federal or state law before such shares may be validly delivered upon
conversion, the Company will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange, list and keep listed for so long as the Common
Stock shall be so listed on such exchange, upon official notice of issuance, all
Common Stock deliverable upon conversion of the Convertible Securities.
88
<PAGE>
SECTION 1710. Responsibility of Trustee.
Neither Trustee nor any authenticating agent nor any conversion agent
shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any authenticating agent nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security,
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
Section 601, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Convertible Security for the purpose of conversion or
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
SECTION 1711. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on the Common Stock (other than in cash out of its current or retained
earnings); or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares
of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock (other than
a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to
par value) or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required
or of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and the Company shall cause
to be mailed to each holder of Convertible Securities at such holder's address
appearing on the Security Register, provided for in Section 305 of this
Indenture, as promptly as possible but in any event no less than fifteen days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
89
<PAGE>
dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, change, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, change, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up or any adjustment in the
Conversion Price required by this Article Seventeen.
SECTION 1712. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all outstanding Convertible Securities.
90
<PAGE>
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.
RELIASTAR FINANCIAL CORP.
By ____________________________________________
Its _________________________________________
[CORPORATE SEAL]
Attest:
______________________________
Secretary
[___________________________________]
By ____________________________________________
Its _________________________________________
[CORPORATE SEAL]
Attest:
______________________________
Secretary
91
<PAGE>
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the _________ day of ___________________________, _________, before
me personally came __________________________________________, to me known, who,
being duly sworn, did depose and say that he resides at
________________________________________; that he is a _____________________ of
ReliaStar Financial Corp., a corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that it was so
affixed pursuant to the authority of the Board of Directors of said corporation;
and that he signed his name thereto pursuant to like authority.
_____________________________________________
Notary Public
92
<PAGE>
STATE OF ______________ )
)SS.
COUNTY OF ____________ )
On the _________ day of ___________________________, _________, before
me personally came __________________________________________, to me known, who,
being duly sworn, did depose and say that he resides at
________________________________________; that he is a _____________________ of
______________________________________________, a national banking association
described in and which executed the above instrument; that he knows the seal of
said corporation; that it was so affixed pursuant to the authority of the Board
of Directors of said corporation; and that he signed his name thereto pursuant
to like authority.
_____________________________________________
Notary Public
93
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
RELIASTAR FINANCIAL CORP.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of
______________________, __________ (the "Indenture") between ReliaStar Financial
Corp. and __________________ _________________________________ (the "Trustee"),
covering the above-captioned Debt Securities. This is to certify that as of the
date hereof, __________________ principal amount of Debt Securities credited to
you for our account (i) is owned by persons that are not United States Persons,
as defined below; (ii) is owned by United States Persons that are (a) foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for
their own account or for resale, or (b) United States Persons who acquired the
Debt Securities through foreign branches of United States financial institutions
and who hold the Debt Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution encloses herewith a certificate in the form of
Exhibit A-2 to the Indenture); or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), which
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) certify that they have not
acquired the Debt Securities for purposes of resale directly or indirectly to a
United States Person or to a person within the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We undertake
to advise you by tested telex followed by written confirmation if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then appear in your
books as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), 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 that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to ________________________
principal amount of Debt Securities credited to you for our account and to which
we are not now able to make the certification set forth above. We understand
that definitive Debt Securities cannot be delivered and
<PAGE>
interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated:___________________
[To be dated on or after
_____________________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
____________________________________________
(Authorized Signatory)
Name:_______________________________________
Title:______________________________________
_____________________________
*Delete if inappropriate
A-1-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
RELIASTAR FINANCIAL CORP.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of
______________________, __________ (the "Indenture") between ReliaStar Financial
Corp. _________________________________, as trustee, relating to the offering of
the above-captioned Debt Securities (the "Debt Securities"). Unless herein
defined, terms used herein have the same meaning as given to them in the
Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section 1.165-
12(c)(1)(v)) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:____________________
[To be dated on or after_____________________________
(the date determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
____________________________________________
(Authorized Signatory)
Name:_______________________________________
Title:______________________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
RELIASTAR FINANCIAL CORP.
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, __________________________, of the Global
Security representing the above-captioned issue [which is herewith submitted to
be exchanged for definitive Debt Securities]* [for which we are seeking to
obtain payment of interest]* (the "Submitted Portion"). This is to certify,
pursuant to the Indenture dated as of _______________________, _______ (the
"Indenture") between ReliaStar Financial Corp. and
____________________________________________, as trustee (the "Trustee"), that
we have received in writing, by tested telex or by electronic transmission from
member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of _____________ in
____________ definitive Bearer Securities in the denominations on the attached
Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:________________
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System] [CEDEL S.A.]
By:__________________________________________
__________________
*Delete if inappropriate.
<PAGE>
Exhibit 4(i)
================================================================================
RELIASTAR FINANCIAL CORP.
TO
____________________________________
TRUSTEE
________________
INDENTURE
DATED AS OF ____________________
________________
JUNIOR SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE>
RELIASTAR FINANCIAL CORP.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ______________
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C>
(S)310(a)(1)............................................................ 609
(a)(2)............................................................. 609
(a)(3).................................................. Not Applicable
(a)(4).................................................. Not Applicable
(a)(5)............................................................. 609
(b)............................................................ 608, 610
(c)..................................................... Not Applicable
(S)311(a)............................................................... 613
(b)................................................................ 613
(S)312(a)........................................................ 701, 702(a)
(b)............................................................. 702(b)
(c)............................................................. 702(c)
(S)313(a)............................................................ 703(a)
(b)............................................................. 703(a)
(c)............................................................. 703(a)
(d)............................................................. 703(b)
(S)314(a)........................................................ 704, 1004
(b)...................................................... Not Applicable
(c)(1)............................................................. 102
(c)(2)............................................................. 102
(c)(3)................................................... Not Applicable
(d)...................................................... Not Applicable
(e)................................................................ 102
(S)315(a)............................................................... 601
(b)................................................................ 602
(c)................................................................ 601
(d)................................................................ 601
(e)................................................................ 514
(S)316(a)............................................................... 101
(a)(1)(A)................................................... 104(h), 502
512
(a)(1)(B)................................................... 104(h), 513
(a)(2)................................................... Not Applicable
(b)................................................................ 508
(c).............................................................. 104(h)
(S)317(a)(1)............................................................ 503
(a)(2)............................................................. 504
(b)................................................................ 1003
(S)318(a)............................................................... 107
(c)................................................................ 107
</TABLE>
_____________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Parties........................................................................ 1
Recitals....................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions....................................................... 1
Act.......................................................................... 2
Affiliate.................................................................... 2
Authorized Newspaper......................................................... 2
Bearer Security.............................................................. 2
Board of Directors........................................................... 2
Board Resolution............................................................. 2
Business Day................................................................. 3
CEDEL or CEDEL S.A........................................................... 3
Closing Price................................................................ 3
Commission................................................................... 3
Common Stock................................................................. 3
Company...................................................................... 3
Company...................................................................... 3
Conversion Price............................................................. 3
Convertible Securities....................................................... 3
Corporate Trust Office....................................................... 3
corporation.................................................................. 4
coupon....................................................................... 4
Debt Securities.............................................................. 4
Defaulted Interest........................................................... 4
Depositary................................................................... 4
Designated Currency.......................................................... 4
Dollar\ or................................................................... 4
ECU.......................................................................... 4
Eligible Instruments......................................................... 4
Euroclear.................................................................... 4
European Communities......................................................... 4
Event of Default............................................................. 4
Exchange Rate................................................................ 4
Exchange Rate Agent.......................................................... 4
Exchange Rate Officer's Certificate.......................................... 5
Foreign Currency............................................................. 5
Global Exchange Agent........................................................ 5
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Global Exchange Date......................................................... 5
Global Security.............................................................. 5
Holder....................................................................... 5
Indenture.................................................................... 5
interest..................................................................... 5
Interest Payment Date........................................................ 5
Maturity..................................................................... 5
Officers' Certificate........................................................ 5
Opinion of Counsel........................................................... 6
Original Issue Discount Security............................................. 6
Outstanding.................................................................. 6
Paying Agent................................................................. 6
Perpetual Preferred Stock.................................................... 6
Person....................................................................... 7
Place of Payment............................................................. 7
Predecessor Security......................................................... 7
Redemption Date.............................................................. 7
Redemption Price............................................................. 7
Registered Security.......................................................... 7
Regular Record Date.......................................................... 7
Remarketing Entity........................................................... 7
Repayment Date............................................................... 7
Repayment Price.............................................................. 7
Responsible Officer.......................................................... 7
Rights....................................................................... 8
Security Register............................................................ 8
Senior Debt.................................................................. 8
Special Record Date.......................................................... 8
Stated Maturity.............................................................. 8
Trust Indenture Act.......................................................... 8
Trustee...................................................................... 8
United States................................................................ 8
United States Alien.......................................................... 9
U.S. Government Obligations.................................................. 9
Section 102. Compliance Certificates and Opinions.............................. 9
Section 103. Form of Documents Delivered to Trustee............................ 10
Section 104. Acts of Holders................................................... 10
Section 105. Notices, etc., to Trustee and Company............................. 12
Section 106. Notice to Holders; Waiver......................................... 12
Section 107. Conflict with Trust Indenture Act................................. 13
Section 108. Effect of Headings and Table of Contents.......................... 13
Section 109. Successors and Assigns............................................ 13
Section 110. Separability Clause............................................... 14
Section 111. Benefits of Indenture............................................. 14
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 112. Governing Law..................................................... 14
Section 113. Legal Holidays.................................................... 14
Section 114. Counterparts...................................................... 14
ARTICLE TWO
DEBT SECURITY FORMS
Section 201. Forms Generally................................................... 14
Section 202. Form of Trustee's Certificate of Authentication................... 15
Section 203. Debt Securities in Global Form.................................... 15
ARTICLE THREE
THE DEBT SECURITIES
Section 301. Amount Unlimited; Issuance in Series.............................. 16
Section 302. Denominations..................................................... 19
Section 303. Execution, Authentication, Delivery and Dating.................... 20
Section 304. Temporary Debt Securities......................................... 22
Section 305. Registration; Registration of Transfer and Exchange............... 25
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities............. 28
Section 307. Payment of Interest; Interest Rights Preserved.................... 29
Section 308. Persons Deemed Owners............................................. 31
Section 309. Cancellation...................................................... 32
Section 310. Computation of Interest........................................... 32
Section 311. Certification by a Person Entitled to Delivery of a Bearer
Security......................................................... 32
Section 312. Judgments......................................................... 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture........................... 33
Section 402. Application of Trust Money and Eligible Instruments............... 35
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities of
any Series....................................................... 35
ARTICLE FIVE
REMEDIES
Section 501. Events of Default................................................. 37
Section 502. Acceleration of Maturity; Rescission and Annulment................ 38
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee... 39
Section 504. Trustee May File Proofs of Claim.................................. 40
Section 505. Trustee May Enforce Claims without Possession of Debt Securities
or Coupons....................................................... 41
Section 506. Application of Money Collected.................................... 41
Section 507. Limitation on Suits............................................... 42
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest..................................................... 43
Section 509. Restoration of Rights and Remedies................................ 43
Section 510. Rights and Remedies Cumulative.................................... 43
Section 511. Delay or Omission Not Waiver...................................... 43
Section 512. Control by Holders of Debt Securities............................. 43
Section 513. Waiver of Past Defaults........................................... 44
Section 514. Undertaking for Costs............................................. 44
Section 515. Waiver of Stay or Extension Laws.................................. 45
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............................... 45
Section 602. Notice of Default................................................. 45
Section 603. Certain Rights of Trustee......................................... 46
Section 604. Not Responsible for Recitals or Issuance of debt Securities....... 47
Section 605. May Hold Debt Securities or Coupons............................... 47
Section 606. Money Held in Trust............................................... 47
Section 607. Compensation and Reimbursement.................................... 47
Section 608. Disqualification; Conflicting Interests........................... 48
Section 609. Corporate Trustee Required; Eligibility........................... 48
Section 610. Resignation and Removal; Appointment of Successor................. 49
Section 611. Acceptance of Appointment by Successor............................ 50
Section 612. Merger, Conversion, Consolidation or Succession to Business....... 51
Section 613. Preferential Collection of Claims Against Company................. 52
Section 614. Authenticating Agent.............................................. 52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......... 53
Section 702. Preservation of Information; Communications to Holders............ 54
Section 703. Reports by Trustee................................................ 54
Section 704. Reports by Company................................................ 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc. Only on Certain Terms............... 55
Section 802. Successor Corporation Substituted................................. 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
Section 901. Supplemental Indentures without Consent of Holders................ 56
Section 902. Supplemental Indentures with Consent of Holders................... 57
Section 903. Execution of Supplemental Indentures.............................. 59
Section 904. Effect of Supplemental Indentures................................. 59
Section 905. Conformity with Trust Indenture Act............................... 59
Section 906. Reference in Debt Securities to Supplemental Indentures........... 59
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest....................... 59
Section 1002. Maintenance of Office or Agency.................................. 60
Section 1003. Money for Debt Securities Payments to Be Held in Trust........... 61
Section 1004. Officers' Certificate as to Default.............................. 62
Section 1005. Waiver of Certain Covenants...................................... 63
Section 1006. Payment of Additional Amounts.................................... 63
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
Section 1101. Applicability of Article......................................... 64
Section 1102. Election to Redeem; Notice to Trustee............................ 64
Section 1103. Selection by Trustee of Debt Securities to be Redeemed........... 64
Section 1104. Notice of Redemption............................................. 65
Section 1105. Deposit of Redemption Price...................................... 66
Section 1106. Debt Securities Payable on Redemption Date....................... 66
Section 1107. Debt Securities Redeemed in Part................................. 67
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article......................................... 67
Section 1202. Satisfaction of Sinking Fund Payments with Debt Securities....... 67
Section 1203. Redemption of Debt Securities for Sinking Fund................... 68
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article......................................... 68
Section 1302. Repayment of Debt Securities..................................... 69
Section 1303. Exercise of Option; Notice....................................... 69
Section 1304. Election of Repayment by Remarketing Entities.................... 70
Section 1305. Securities Payable on the Repayment Date......................... 70
</TABLE>
v
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
<TABLE>
<S> <C>
Section 1401. Purposes for Which Meetings May Be Called........................ 70
Section 1402. Call, Notice and Place of Meetings............................... 71
Section 1403. Persons Entitled to Vote at Meetings............................. 71
Section 1404. Quorum; Action................................................... 71
Section 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings........................................................ 72
Section 1406. Counting Votes and Recording Action of Meetings.................. 73
ARTICLE FIFTEEN
DEFEASANCE
Section 1501. Termination of Company's Obligations............................. 74
Section 1502. Repayment to Company............................................. 75
Section 1503. Indemnity for Eligible Instruments............................... 75
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
Section 1601. Debt Securities Subordinate to Senior Debt....................... 75
Section 1602. Trustee and Holders of Debt Securities May Rely of Certificate
of Liquidating Agent; Trustee May Require Further Evidence as
to Ownership of Senior Debt; Trustee Not Fiduciary to Holders
of Senior Debt.................................................. 78
Section 1603. Payment Permitted If No Default.................................. 79
Section 1604. Trustee Not Charged with Knowledge of Prohibition................ 79
Section 1605. Trustee to Effectuate Subordination.............................. 79
Section 1606. Rights of Trustee as Holder of Senior Debt....................... 79
Section 1607. Article Applicable to Paying Agents.............................. 80
Section 1608. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt............................... 80
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
Section 1701. Applicability of Article......................................... 80
Section 1702. Right to Convert................................................. 80
Section 1703. Exercise of Conversion Privilege; Delivery of Common Stock on
Conversion; No Adjustment for Interest or Dividends............. 81
Section 1704. Cash Payments in Lieu of Fractional Shares....................... 82
Section 1705. Conversion Price................................................. 82
Section 1706. Adjustment to Conversion Price................................... 83
Section 1707. Effect of Reclassification, Consolidation, Merger or Sale........ 86
</TABLE>
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<TABLE>
<S> <C>
Section 1708. Taxes on Shares Issued........................................... 87
Section 1709. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock............................ 87
Section 1710. Responsibility of Trustee........................................ 88
Section 1711. Notice to Holders Prior to Certain Actions....................... 88
Section 1712. Covenant to Reserve Shares....................................... 89
Testimonium.................................................................... 103
Signature and Seals............................................................ 103
Acknowledgements............................................................... 104
Exhibit A-1.................................................................... A-1
Exhibit A-2.................................................................... A-2
Exhibit B...................................................................... B-1
</TABLE>
vii
<PAGE>
INDENTURE (the "Indenture") dated as of ______________________,
between RELIASTAR FINANCIAL CORP., a Delaware corporation (the "Company"),
having its principal place of business at 20 Washington Avenue South,
Minneapolis, Minnesota 55401 and____________________________, not in its
individual capacity but solely as trustee under this Indenture, a Delaware
banking corporation (hereinafter called the "Trustee"), having its Corporate
Trust Office at_______________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its junior
subordinated debentures, notes, bonds and other evidences of indebtedness
(herein called the "Debt Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities, or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, as in force at the date as of
which this instrument was executed, except as provided in Section 905, have
the meanings assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States at the date of such
computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an 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,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
2
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"Business Day," when used with respect to any Place of Payment, means
any day which is not a Saturday or Sunday and which is not a legal holiday or a
day on which banking institutions or trust companies in that Place of Payment
are authorized or obligated by law or executive order to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Closing Price" has the meaning specified in Section 1706(d).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Stock" means, when used with reference to the capital stock
of the Company, the class of stock which, at the date of execution of this
Indenture, is designated as common stock of the Company and stock of any class
or classes into which such common stock or any such other class may thereafter
be changed or reclassified. In case by reason of the operation of Article
Seventeen, the Convertible Securities shall be convertible into any other shares
or other securities or property of the Company or any other corporation, any
reference in this Indenture to the conversion of Convertible Securities pursuant
to Article Seventeen shall be deemed to refer to and include conversion of
Convertible Securities into such other shares or other securities or property.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company, or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 1705.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which any particular time its corporate trust business shall
be administered.
3
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The term "corporation" includes corporations, associations, companies
and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the coin or currency of the United States of
America 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.
"Eligible Instruments" means monetary assets, money market
instruments and securities that are payable in Dollars only and essentially risk
free as to collection of principal and interest, including U.S. Government
Obligations.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 301.
4
<PAGE>
"Exchange Rate Officer's Certificate," with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Debt Securities, means a certificate setting forth the applicable Exchange Rate
and the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or
part of a series of Debt Securities in accordance with Section 303.
"Holder," with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "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," with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Maturity," when used with respect to any Debt Security, means the
date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
5
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
counsel for the Company, or who may be other counsel acceptable to the Trustee,
which is delivered to the Trustee.
"Original Issue Discount Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Debt Securities and any
coupons appertaining thereto; provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Debt Securities in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered, or which have been
paid, pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt 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 relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt 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 (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Perpetual Preferred Stock" means any stock of any class of the
Company which has a preference over Common Stock in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily redeemable
or repayable, or redeemable or repayable at the option of the Holder,
6
<PAGE>
otherwise than in shares of Common Stock or Perpetual Preferred Stock of another
class or series or with the proceeds of the sale of Common Stock or Perpetual
Preferred Stock.
"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 Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Redemption Date," when used with respect to any Debt 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 Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 201 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Remarketing Entity," when used with respect to Debt Securities of
any series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date," when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
"Repayment Price," when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the price
at which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means
any officer of the Trustee assigned by it to administer its corporate trust
matters.
7
<PAGE>
"Rights" has the meaning specified in Section 1706(c).
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means (i) the principal, premium, if any, and interest
in respect of (A) indebtedness of the Company for money borrowed and (B)
indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by the Company; (ii) all capital lease obligations of the
Company; (iii) all obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Company and
all obligations of the Company under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of the Company for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar credit
transaction; (v) all obligations of the type referred to in clauses (i) through
(iv) of other Persons for the payment of which the Company is responsible or
liable as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any lien on
any property or asset of the Company (whether or not such obligation is assumed
by the Company), except for Trust Related Securities.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"Trust Related Securities" means any obligations evidenced by debt
securities (and guarantees in respect of those debt securities) initially issued
to any trust, or a trustee of a trust, partnership or other entity affiliated
with the Company that is, directly or indirectly, a financing vehicle of the
Company in connection with the issuance by such entity of preferred securities
or other similar securities.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
8
<PAGE>
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States.
SECTION 102. Compliance Certificates and Opinions .
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee, if so requested by 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 shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definition 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 or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition 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.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is 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 opinions or representations with respect to such
matters is 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 104. 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 an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or
in part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Fourteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 1406.
10
<PAGE>
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, 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 depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
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 (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debt Security.
(g) For purposes of determining the principal amount of Outstanding
Debt Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of
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the date such Act is delivered to the Trustee and, where it is hereby expressly
required, to the Company, by Holders of the required aggregate principal amount
of the Outstanding Debt Securities of such series (or, if there is no such rate
on such date, such rate on the date determined as specified as contemplated in
Section 301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders of
such Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other 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 made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Division, 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 the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
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In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice by publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act 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.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether expressed or not.
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SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity of any Debt Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or coupons) payment of interest or principal
(and premium, if any) 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 the Interest Payment Date,
Redemption Date, Repayment Date or at the Stated Maturity, and no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date or Stated Maturity, as the case may be.
SECTION 114. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures
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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 as may, consistently herewith, be
determined by the officers executing such Debt Securities or coupons, as
evidenced by their signatures on the Debt Securities or coupons. If the form of
Debt Securities of any series or coupons (including any such Global Security) is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action 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 303 or the
authentication and delivery of such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt 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 Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
_____________________, not in its individual
capacity but solely as Trustee
By________________________________________
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (12) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amounts, of Outstanding Debt Securities represented thereby shall be
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made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306,
906, 1107, 1303 or 1703 and except for any Debt Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such
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interest shall be payable, the Regular Record Date for the interest payable
on any Registered Security on any Interest Payment Date and the
circumstances, if any, in which the Company may defer interest payments;
(5) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Debt Securities of
the series may be surrendered for exchange and notices and demands to or
upon the Company in respect of the Debt Securities of the series and this
Indenture may be served and where notices to Holders pursuant to Section
106 will be published;
(6) if applicable, the period or periods within which or the date or
dates on which, the price or prices at which and the terms and conditions
upon which Debt Securities of the series may be redeemed, in whole or in
part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(9) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(10) if Debt Securities of the series are to be issuable initially in
the form of a temporary Global Security, the circumstances under which the
temporary Global Security can be exchanged for definitive Debt Securities
and whether the definitive Debt Securities will be Registered and/or Bearer
Securities and will be in global form and whether interest in respect of
any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Global Exchange Date shall be paid to any
clearing organization with respect to a portion of such Global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
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(11) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1006;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the denomination
of $5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) the currency or currencies of denomination of the Debt Securities
of any series, which may be in Dollars, any Foreign Currency or any
composite currency, including but not limited to the ECU, and, if any such
currency of denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such composite
currency;
(15) the currency or currencies in which payment of the principal of
(and premium, if any) and interest on the Debt Securities will be made, the
currency or currencies, if any, in which payment of the principal of (and
premium, if any) or the interest on Registered Securities, at the election
of each of the Holders thereof, may also be payable and the periods within
which and the terms and conditions upon which such election is to be made
and the Exchange Rate and Exchange Rate Agent;
(16) if the amount of payments of principal of (and premium, if any)
or interest on the Debt Securities of the series may be determined with
reference to an index based on a currency or currencies other than that in
which the Debt Securities are denominated or designated to be payable, the
manner in which such amounts shall be determined;
(17) if payments of principal of (and premium, if any) or interest on
the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined or if the Exchange Rate is to be determined otherwise than as
provided in Section 101;
(18) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(19) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of Debt Securities
of the series in lieu of any covenant or warranty set forth herein for the
benefit of Debt Securities of all series, or any provision that any
covenant or warranty set forth herein for the benefit of Debt Securities of
all series shall not be for the
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benefit of Debt Securities of such series, or any combination of such
covenants, warranties or provisions and the applicability, if any, of the
provisions of Section 1005 to such covenants and warranties;
(20) the terms and conditions, if any, pursuant to which the Company's
obligations under this Indenture may be terminated through the deposit of
money or Eligible Instruments as provided in Articles Four and Fifteen;
(21) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee;
(22) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price and
the date on which the right to convert expires; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action 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
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denomination of $5,000.
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SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by
its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt 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
Debt Securities or coupons of any series or did not hold such offices at the
date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery
of this Indenture, Debt Securities of any series may be executed by the Company
and delivered to the Trustee for authentication, and, except as otherwise
provided in this Article Three, shall thereupon be authenticated and delivered
by the Trustee upon Company Order, without any further action by the Company;
provided, however, that, in connection with its original issuance, a Bearer
Security may be delivered only outside the United States and, except in the case
of a temporary Global Security, only if the Company or its agent shall have
received the certification required pursuant to Sections 304(b)(iii) and (iv),
unless such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
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(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and terms of
the Debt Securities of such series and coupons, if any, pursuant to
Sections 201 and 301 and stating that all conditions precedent provided for
in this Indenture relating to the issuance of such Debt Securities have
been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and coupons, if
any, has been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity with
the provisions of this Indenture;
(B) that the terms of such Debt Securities and coupons, if
any, have been established in or pursuant to a Board Resolution or by
a supplemental indenture as permitted by Section 301 in conformity
with the provisions of this Indenture; and
(C) that such Debt Securities and coupons, if any, 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 binding obligations of the
Company, enforceable in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally and the application of general principles of equity and
except further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Debt 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 (ii) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or currency
units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, 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 Global Securities in permanent
or temporary form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect
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the Trustee's own rights, duties or immunities under the Debt Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
(e) If all the Debt Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel at the time
of issuance of each Debt Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of the first
issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, 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 Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities .
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, representing all or any part of the Outstanding Debt Securities of
such series.
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(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global
form, if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of
such series, the related temporary Debt Securities shall be exchangeable
for such definitive Debt Securities upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in the
Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied, if applicable, by all unmatured coupons and all
matured coupons in default appertaining thereto), the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debt Securities of the same series of like
tenor and terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered Security;
and provided, further, that a Bearer Security shall be delivered in
exchange for a Bearer Security only in compliance with the conditions set
forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary
global form, any such temporary Global Security shall, unless otherwise
provided pursuant to Section 301, be delivered to the Depositary for the
benefit of Euroclear and CEDEL S.A., for credit to the respective accounts
of the beneficial owners of such Debt Securities (or to such other accounts
as they may direct).
(iii) Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed by
the Company pursuant to Section 301 to effect the exchange of the temporary
Global Security for definitive Debt Securities (the "Global Exchange
Agent"), in an aggregate principal amount equal to the principal amount of
such temporary Global Security, executed by the Company. On or after the
Global Exchange Date, such temporary Global Security shall be surrendered
by the Depositary to the Global Exchange Agent, to be exchanged, in whole
or from time to time in part, for definitive Debt Securities without charge
and the Trustee or the Global Exchange Agent, if authorized by the Trustee
pursuant to Section 614, shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part of
such temporary Global Security for definitive Debt Securities, the portion
of the principal amount and any interest thereon so exchanged shall be
endorsed by the Global Exchange Agent on a schedule to such temporary
Global Security, whereupon the principal amount and interest payable with
respect to such temporary Global Security shall be reduced for all purposes
by the amount so exchanged and endorsed. The definitive Debt Securities to
be delivered in exchange for any such temporary Global Security shall be in
bearer form,
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registered form, global registered form or global bearer form, or any
combination thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, in the case of the exchange of the
temporary Global Security for definitive Bearer Securities (including a
definitive Global Bearer Security), upon such presentation by the
Depositary, such temporary Global Security shall be accompanied by a
certificate signed by Euroclear as to the portion of such temporary Global
Security held for its account then to be exchanged and a certificate signed
by CEDEL S.A. as to the portion of such temporary Global Security held for
its account then to be exchanged, each in the form set forth in Exhibit B
to this Indenture, unless such certificate(s) shall have been provided
earlier pursuant to section 304(b)(v) hereof; and provided, further, that
definitive Bearer Securities (including a definitive Global Bearer
Security) shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a
series in a temporary Global Security shall be exchanged for definitive
Debt Securities of the same series and of like tenor and terms following
the Global Exchange Date when the account holder instructs Euroclear or
CEDEL S.A., as the case may be, to request such exchange on such account
holder's behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global
Bearer Security), unless such certificate(s) shall have been provided
earlier pursuant to Section 304(b)(v) hereof, the account holder delivers
to Euroclear or CEDEL S.A., as the case may be, a certificate in the form
set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities must
bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Debt
Securities in person at the offices of Euroclear and CEDEL S.A. Definitive
Debt Securities in bearer form to be delivered in exchange for any portion
of a temporary Global Security shall be delivered only outside the United
States.
(v) Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as definitive Debt Securities of
the same series and of like tenor and terms authenticated and delivered
hereunder, except that interest payable on a temporary Global Security on
an Interest Payment Date shall be payable to Euroclear and CEDEL S.A. on
such Interest Payment Date only if there has been delivery by Euroclear and
CEDEL S.A. to the Global Exchange Agent of a certificate or certificates in
the form set forth in Exhibit B to this Indenture dated no earlier than the
first Interest Payment Date, for credit without further interest on or
after such Interest Payment Date to the respective accounts of the Persons
who are the beneficial owners of such temporary Global Security on such
Interest Payment Date and who have each delivered to Euroclear or CEDEL
S.A., as the
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case may be, a certificate in the form set forth in Exhibit A-1 and, if
applicable, A-2 to this Indenture dated no earlier than the first Interest
Payment Date. Any interest so received by Euroclear and CEDEL S.A. and not
paid as herein provided prior to the Global Exchange Date shall be returned
to the Global Exchange Agent which, upon expiration of two years after such
Interest Payment Date, shall repay such interest to the Company in
accordance with Section 1003.
SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies
to be maintained by the Company in accordance with the provisions of this
Section 305 and Section 1002, with respect to the Debt Securities of each series
which are Registered Securities, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized form and denomination, of like tenor and terms and aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at
such office or agency. Bearer Securities may not be delivered in exchange for
Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 301 with respect to a Bearer
Security in global form) of the same series, of any authorized form and
denomination and of like tenor and terms and aggregate principal amount, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company and the Trustee in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such
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payment; provided, however, that, except as otherwise provided in Section 1002,
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 a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor and terms after the close of business
at such office or agency of (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.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt 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 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations
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as requested by such person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly
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endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Security Registrar and the Trustee duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Debt 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 transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed for a
period of fifteen days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Debt Securities
of such series selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (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 such Registered 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
like tenor and terms of that series, provided that such Registered Security
shall be simultaneously surrendered for redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security,
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a new Debt Security of like tenor and terms and principal amount, bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupon, if any, appertaining to such destroyed, lost or stolen Debt Security or
to the Debt Security to which such destroyed, lost or stolen coupon appertains;
provided, however, that any such new Bearer Security will be delivered only in
compliance with the conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not any additional amounts payable as provided in
Section 1006) shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt
Security, or in exchange for a Bearer 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 Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest 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 Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date 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
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in accordance with the provisions of this Indenture. At the option of the
Company, payment of interest on any Registered Security may be made by check in
the currency designated for such payment pursuant to the terms of such
Registered Security mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
in such currency designated by such Person in writing not later than ten days
prior to the date of such payment.
Any interest on any Registered Security 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 registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments
of principal and interest on which when due (and without reinvestment and
providing no tax liability will be imposed upon the Trustee or the Holder
of such Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the Trustee,
without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money and/or Eligible Instruments when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements satisfactory to
the Trustee with respect thereto, of the names and addresses of, and
principal amounts of Registered Securities of such series held by, the
Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the
Trustee 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 Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
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Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
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, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of 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 (and premium, if any) and (subject to Section 307)
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.
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None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities,
all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company unless by a Company Order the
Company shall direct that the cancelled Debt Securities or coupons be returned
to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a
Bearer Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification be given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 301, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 301 is of the essence and
agrees that judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if
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any) and interest on such Debt Securities and any appurtenant coupons shall,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
currency (after any premium and cost of exchange) in the country of issue of the
Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite currency on the
Business Day immediately following the day on which such Holder receives such
payment; (c) if the amount in the Designated Currency that may be so purchased
for any reason falls short of the amount originally due, the Company shall pay
such additional amounts as may be necessary to compensate for such shortfall;
and (d) any obligation of the Company not discharged by such payment shall be
due as a separate and independent obligation and, until discharged as provided
herein, shall continue in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect, including the provisions of Article Sixteen hereof (except as to any
surviving rights of registration of transfer or exchange of Debt Securities
herein expressly provided for and rights to receive payments of principal and
interest thereon and any right to receive additional amounts, as provided in
Section 1006) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(A) all Debt Securities theretofore authenticated and delivered
and all coupons appertaining thereto (other than (i) 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 305,
(ii) Debt Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate, surrender
of which has been waived as provided in Section 1106 or 1303 and (iv)
Debt Securities and coupons for whose payment money and/or Eligible
Instruments have theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee cancelled or for cancellation; or
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(B) all such Debt Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) 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 (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities) will
provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge the entire indebtedness on such
Debt Securities and coupons of such series for principal (and premium,
if any) and interest, and any mandatory sinking fund, repayment or
analogous payments thereon, on the scheduled due dates therefor to the
date of such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or Redemption
Date, if any, and all Repayment Dates (in the case of Debt Securities
repayable at the option of the Holders thereof); provided, however,
that in the event a petition for relief under the Bankruptcy Reform
Act of 1978 or a successor statute is filed with respect to the
Company within 91 days after the deposit, the obligations of the
Company under the Indenture with respect to the Debt Securities of
such series shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited money and
Eligible Instruments to the Company;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money and Eligible Instruments.
Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
401, 403 or 1501 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt 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 (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Debt Securities of any series, then, notwithstanding Section
401, (i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Sixteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of that series on that day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Debt Securities, the Company's obligations with respect to such Debt
Securities under Sections 304, 305, 306, 1002, 1003 and 1006 and the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including those
under Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Order, execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Section 403 applicable to
it) irrevocably, as trust funds in trust, money and/or to the extent
such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability will
be imposed upon the Trustee or the Holders of such Debt Securities)
will provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay and discharge (i) the principal of (and premium,
if
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any) and interest on the Outstanding Debt Securities of that series
and related coupons on the Stated Maturity of such principal or
interest or, if such series may be redeemed by the Company prior to
the Stated Maturity thereof and the Company shall have given
irrevocable instructions to the Trustee to effect such redemption, at
the date fixed for such redemption pursuant to Article Eleven, and
(ii) any mandatory sinking fund payments or analogous payments
applicable to Debt Securities of such series on the date on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable with
respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing on
the date of such deposit and no Event of Default under Section 501(1) or
Section 501(2) or event which, with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 501(1) or Section
501(2) shall have occurred and be continuing on the 91st day after such
date;
(5) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date
of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities and related
coupons of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge
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;
(6) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted;
(7) such deposit shall have been effected in compliance with any
additional terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301; and
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(8) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
entire indebtedness of all Outstanding Debt Securities and related coupons
have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .
"Event of Default," wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, 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 any installment of
interest upon any of the Debt Securities of such series, as and when the
same shall become due and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid
-------- -------
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extension of an interest payment period by the Company in accordance with
the terms of any indenture supplemental hereto shall not constitute a
default in the payment of interest for this purpose; or
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of such series, as and when
the same shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series; provided, however,
-------- -------
that a valid extension of the maturity of such Debt Securities in
accordance with the terms of any indenture supplemental hereto shall not
constitute a default in the payment of principal or premium, if any; or
(3) if applicable to the Debt Securities of such series, failure by
the Company to issue Common Stock upon an election by the Holder or Holders
of such Debt Securities to convert such Debt Securities into shares of
Common Stock pursuant to the provisions of any indenture supplemental
hereto, Board Resolution or other instrument authorizing such series of
Debt Securities; or
(4) the entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an involuntary
case under the Federal bankruptcy laws, as now or hereafter constituted,
and the continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days; or
(5) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or the consent by
the Company to the entry of a decree or order for relief in an involuntary
case under any such law; or
(6) any other Event of Default, if any, provided with respect to Debt
Securities of such series specified as contemplated by Section 301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment .
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has
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been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt Securities
of such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt Securities of such
series have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Debt Security or any related coupon 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 Debt Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series, or
(4) default is made in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of series of Debt
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Securities other than such series), and such default or breach continues
for 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 principal amount of the
Outstanding Debt Securities of such 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,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest, sinking fund installment and interest and, to the extent that payment
of such interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and, upon overdue installments of interest, at
the rate or rates prescribed therefor in such Debt Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment of final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and coupons, wherever situated.
If an Event of Default with respect to Debt 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 Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any
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appurtenant coupons and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of amounts then due and unpaid to the holders
of Senior Debt, to the extent required by Article Sixteen;
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THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities and
any coupons, in respect of which or for the benefit of which such money has
been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively.
The Holders of each series of Debt Securities denominated in ECU, any other
composite currency or a Foreign Currency and any matured coupons relating
thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Debt Securities and matured but unpaid
interest on such series of Debt Securities in the currency in which such
series of Debt Securities is denominated into Dollars at the Exchange Rate
as of the date of declaration of acceleration of the Maturity of the Debt
Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons
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) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series;
it being understood and intended that no one or more of such 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 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.
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SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder, subject, however, to the provisions of
Article Sixteen.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings 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 the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
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 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for
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any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Debt Securities of such series, provided,
that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in
any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series or coupons affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Company or the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or
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to any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debt Security or the
payment of any coupons on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or coupon (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date, as the case may
be).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law whenever 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 benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided in
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any
series the Trustee shall transmit by mail to all Holders of Debt Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or any related coupons or in the payment of any sinking
fund installment with respect to Debt Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Debt Securities
of such series. For the purpose of this Section, the
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term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any signature, resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of such series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, 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,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; no Exchange Rate Agent, Global
Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or omission by any
of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not be
responsible for and makes no representations as to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder which shall have been separately
agreed to by the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any
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such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any claim, loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a claim prior to the Debt Securities
and any coupons upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons. The claims of
the Trustee under this Section shall not be subject to the provisions of Article
Sixteen.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under this Indenture with respect to Debt Securities of any particular
series of Debt Securities.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid 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.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with respect to
the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Debt Securities or a decree or order for relief by a court having
jurisdiction in the premises shall have been entered in respect of the
Trustee in an involuntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of
a receiver, custodian, liquidator, assignee, trustee, sequestrator or other
similar official of the Trustee or of its property or affairs, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation,
winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due, or shall take corporate action in
furtherance of any such action,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series 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 for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt 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 Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt 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, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 514, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the
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successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt 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 Debt
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 (3) 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
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the 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 Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided
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such corporation shall be otherwise qualified and eligible under this Article,
without the executing or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debt 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 Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Debt Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication 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 must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States, any State thereof or the District of
Columbia, having a combined capital and surplus of at least $1,000,000,
authorized under such laws to do a trust business and subject to supervision or
examination by Federal or State authorities or the equivalent foreign authority
in the case of an authenticating agent who is not organized and doing business
under the laws of the United States, any State thereof or the District of
Columbia.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
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
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case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may appoint
a successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all 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 Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall
be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
[___________________________________]
By _______________________________________
As Authenticating Agent for the Trustee
By _______________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record Date
in respect of the Debt Securities of such series or on May 15 and November
15 of each year
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with respect to each series of Debt Securities for which there are no
Regular Record Dates, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Registered Securities
as of such Regular Record Date or May 1 or November 1, as the case may be,
and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture and such other matters as may be required pursuant to the
Trust Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
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SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall
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succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor had
been named as the Company herein, and thereafter, except in the case of a lease,
the Company (which term for this purpose shall mean the Person named as the
"Company" in the first paragraph of this instrument or any successor corporation
which shall theretofore have become such in the manner presented in this
Article) shall be relieved of all obligations and covenants under this Indenture
and the Debt Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal (or
premium, if any) or any interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities of other
authorized denominations or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
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(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective
only when there is no Debt Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to the
benefit of such provisions or (b) shall not apply to any Debt Security
Outstanding; or
(6) to establish the form or terms of Debt Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Debt Securities of any
series or any related coupons in any material respect; or
(9) to add to or change or eliminate any provision of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Debt Securities of any series or any appurtenant
coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security or coupon
affected thereby,
(1) change the Stated Maturity of the principal or any installment of
principal of, or any installment of interest on, any Debt Security (other
than to the extent set forth in any Debt Security), or reduce the principal
amount thereof or the interest thereon or any premium payable upon
redemption or repayment thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 1006 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of
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an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment, or the coin or currency in which any
Debt Security or the interest thereon or any coupon is payable, or 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 or repayment, on
or after the Redemption Date or Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, 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, or reduce the requirements of Section 1404 for quorum or voting,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1005, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1005, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Convertible Securities of any
series to convert such Debt Securities pursuant to Article Seventeen;
and provided, further, that no change shall be made in the provisions of Article
Sixteen that will affect adversely the holders of Senior Debt without the
consent of the holders of all Senior Debt Outstanding.
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 Debt Securities, or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
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 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities 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 Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Debt Securities and any appurtenant coupons that it will duly and punctually pay
the principal of (and premium, if any) and interest on the Debt Securities and
any appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer
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Securities on or before Maturity, other than additional amounts, if any, payable
as provided in Section 1006 in respect of principal of (or premium, if any, on)
such a Debt Security, shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); provided, however,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or 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 in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. 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 or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, payment
of principal of and any premium and interest denominated in Dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices 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 and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Debt Securities, at
the option of the Holder of any Bearer Security or related coupon, payment may
be made by check in the currency designated for such payment pursuant to the
terms of such Bearer
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Security presented or mailed to an address outside the United States or by
transfer to an account in such currency maintained by the payee with a bank
located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the Debt
Securities of one or more series and any appurtenant coupons (subject to the
preceding paragraph) 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 any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of
Debt 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 (and
premium, if any) or interest on Debt Securities of such series and any
appurtenant coupons 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 Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if any)
or interest on the Debt Securities of such series or any appurtenant
coupons; and
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(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 terminating its
obligations under this Indenture with respect to Debt Securities of any series
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any principal and interest received on the Eligible Instruments
deposited with the Trustee or any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and 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 Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), 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 an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, 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 or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
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SECTION 1005. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition applicable to the Debt Securities of any series that is
determined pursuant to Section 301 to be subject to this provision if, before
the time for such compliance the Holders of at least a majority in principal
amount of the Debt Securities at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in
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connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities 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 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debt Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debt Security to be redeemed, and that interest
thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at
such place or places which are outside the United States, except as
otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the case,
and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company, or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
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SECTION 1105. 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, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to be redeemed are denominated
and payable in Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of the Debt Securities
to be redeemed) will provide money on or prior to the Redemption Date in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 1002, unless otherwise
specified as contemplated by Section 301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities 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 Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt 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 upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that 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 Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
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 without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
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If any Debt 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 Debt Security.
SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
as contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 term of Debt Securities of any series is herein referred to an
"optional sinking fund payment." If provided for by the terms of Debt
Securities of any series, the amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made
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pursuant to the terms of such Debt Securities as provided for by the terms of
such series; provided that such Debt Securities have not been previously so
credited. Such Debt Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Debt Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Debt Securities in lieu of cash payments pursuant to this Section
1202, the principal amount of Debt Securities to be redeemed in order to exhaust
the aforesaid cash payment shall be less than $100,000, the Trustee need not
call Debt Securities for redemption, except upon Company Request, and such cash
payment shall be held by the Trustee or a Paying Agent and applied to the next
succeeding sinking fund payment, provided, however, that the Trustee or such
Paying Agent shall at the request of the Company from time to time pay over and
deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Debt Securities
purchased by the Company having an unpaid principal amount equal to the cash
payment requested to be released to the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), 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, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 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 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
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SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part
at the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt Security to be repaid
in whole or in part together with written notice of the exercise of such option
at any office or agency of the Company in a Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment 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 Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid;
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provided, however, that the issuance of a Registered Security therefor shall be
subject to applicable laws and regulations, including provisions of the United
States Federal income tax laws and regulations in effect at the time of the
exchange; neither the Company, the Trustee nor the Security Registrar shall
issue Registered Securities for Bearer Securities if it has received an Opinion
of Counsel that as a result of such issuance the Company would suffer adverse
consequences under the United States Federal income tax laws then in effect and
the Company has delivered to the Trustee a Company Order directing the Trustee
not to make such issuances thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, at any time prior to any Repayment Date to designate one or more
Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and
the Debt Securities so to be repaid having been surrendered as aforesaid, such
Debt Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt Securities of such series may be
called at any time and from time to
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time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be made, given or taken by Holders of Debt Securities of such
series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Debt Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting
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may be further adjourned for a period of not less than 10 days as determined by
the chairperson of the meeting prior to the adjournment of such adjourned
meeting. Notice of this reconvening of any adjourned meeting shall be given as
provided in Section 1402(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series, provided however, that, except as limited by the proviso to Section 902,
any resolution with respect to any demand, consent or waiver or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid only by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; and provided, further, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other Act which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Debt Securities of such series in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may
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provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 1402(b),
in which case the Company or the Holders of Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1401. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Termination of Company's Obligations.
If this Section 1501 is specified, as contemplated by Section 301, to
be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due dates therefor at the Stated Maturity thereof, the Company's obligations
under any covenant determined pursuant to Section 301 to be subject to this
Section shall terminate with respect to the Debt Securities of the series for
which such deposit was made; provided, however, that (i) no Event of Default
with respect to the Debt Securities of such series under Section 501(1) or
Section 501(2) or event that with notice or lapse of time or both would
constitute such an Event of Default shall have occurred and be continuing on
such date, (ii) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound, and (iii) such termination shall not
relieve the Company of its obligations under the Debt Securities of such series
and this Indenture to pay when due the principal of (and premium, if any) and
interest and additional amounts on such Debt Securities and any coupons
appertaining thereto if such Debt Securities or coupons are not paid (or payment
is not provided for) when due from the money and Eligible Instruments (and the
proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the
effect that: (a) Holders of Debt Securities of such series and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and termination and (b) such Holders
(and future Holders) will be subject to tax in the same amount, manner and
timing as if such deposit and termination had not occurred, (ii) an Officers'
Certificate to the effect that under the laws in effect on the date such money
and/or Eligible Instruments are deposited with the Trustee, the amount thereof
will be sufficient, after payment of all Federal, state and local taxes in
respect thereof payable by the Trustee, to pay principal (and premium, if any)
and interest when due on the Debt Securities of such series and any coupons
appertaining thereto; and (iii) an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the defeasance contemplated in this Section have been complied with.
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It shall be an additional condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's obligations pursuant
to the provisions of this Section under any covenant determined pursuant to
Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed on the New York Stock Exchange, that the Company
deliver an Opinion of Counsel that the Debt Securities of such series will not
be delisted from the New York Stock Exchange as a result of such deposit and
termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under any covenant determined pursuant to Section 301 to be
subject to this Section.
SECTION 1502. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money or Eligible Instruments not required for the
payment of the principal of (and premium, if any) and interest on the Debt
Securities of any series and any related coupons for which money or Eligible
Instruments have been deposited pursuant to Section 1501 held by them at any
time.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1501. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1503. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1601. Debt Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything in this Indenture or
the Debt Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Debt Securities of each series and any coupons
appurtenant thereto is subordinate and junior in right of payment to all Senior
Debt to the extent provided herein and shall be pari passu with all Trust
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Related Securities, and each Holder of Debt Securities of each series and
coupons appurtenant thereto, by such Holder's acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Debt shall continue to be Senior Debt and
entitled to the benefits of these subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Debt or extension or
renewal of the Senior Debt.
In the event that the Company shall default in the payment of any
principal of (or premium, if any) or interest on any Senior Debt when the same
become due and payable, whether at maturity or at a date fixed for prepayment or
by declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the Holders of Senior Debt or any trustee therefor,
unless and until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment (in cash, property, securities,
by set-off or otherwise) shall be made or agreed to be made on account of the
principal of (or premium, if any) or interest on any of the Debt Securities, or
in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Debt Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. 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 readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt 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 these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing
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with respect to Senior Debt, the Holders of the Debt Securities and coupons
appurtenant thereto, together with the holders of any obligations of the Company
ranking on a parity with the Debt Securities, shall be entitled to be paid from
the remaining assets of the Company the amounts at the time due and owing on
account of unpaid principal of (and premium, if any) and interest on the Debt
Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any capital
stock or any obligations of the Company ranking junior to the Debt Securities
and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, 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 readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan or reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in
the right to enforce subordination of the indebtedness evidenced by the Debt
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Debt Securities and
coupons appurtenant thereto or prevent the Trustee or the Holder from exercising
all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt 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 Debt then outstanding. Upon the payment in full of
all Senior Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Debt Securities of such
series and coupons appertaining thereto, if any, shall have been paid in full,
and such payments or distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Debt shall, as between the Company and
its creditors other than the holders of Senior Debt, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by the Company on account
of Senior Debt, and not on account of the Debt Securities of such series.
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The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of this Section 1601 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Debt Securities or ranking junior to the Debt Securities, shall
not be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Debt Securities or ranking junior to
the Debt Securities.
SECTION 1602. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Debt;
Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered 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 Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Sixteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (or is such a trustee or representative). In
the event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payments or distributions pursuant to this Article Sixteen,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person
under this Article Sixteen, and if such evidence is not furnished, the Trustee
may offer any payment to such Person pending judicial determination as to the
right of such Person to receive payment. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt.
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SECTION 1603. Payment Permitted If No Default.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture, or in any of the Debt Securities, shall prevent (a) the Company at
any time, except during the pendency of any dissolution, winding up, liquidation
or reorganization proceedings referred to in, or under the conditions described
in, Section 1601, from making payments of the principal of (or premium, if any)
or interest on the Debt Securities or (b) the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to payments of the
principal of or interest on the Debt Securities, if, at the time of such
deposit, the Trustee or such Paying Agent, as the case may be, did not have the
written notice provided for in Section 1604 of any event prohibiting the making
of such deposit, or if, at the time of such deposit (whether or not in trust) by
the Company with the Trustee or any Paying Agent (other than the Company) such
payment would not have been prohibited by the provisions of this Article, and
the Trustee or any Paying Agent shall not be affected by any notice to the
contrary received by it on or after such date.
SECTION 1604. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Sixteen or elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1601 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior Debt who
shall have been certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to which such
Senior Debt shall be outstanding. The Company shall give prompt written notice
to the Trustee and to the Paying Agent of any facts which would prohibit the
payment of money to or by the Trustee or any Paying Agent.
SECTION 1605. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such Holder's acceptance
thereof authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1606. Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt which may at the time be held by it, to
the same extent as any other holder of Senior Debt; provided that nothing in
this Article shall deprive the Trustee of any rights as such holder and provided
further that nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
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SECTION 1607. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 1604 and 1606 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
SECTION 1608. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Debt may, at any time or from
time to time and in their absolute discretion, change the manner, place or terms
of payment, change or extend the time of payment of, or renew or alter, any such
Senior Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Debt including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Debt Securities or the
Trustee and without affecting the obligations of the Company, the Trustee or the
Holders of the Debt Securities under this Article.
ARTICLE SEVENTEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1701. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to Section
301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
SECTION 1702. Right to Convert.
Subject to and upon compliance with the provisions of this Article,
the Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof or in an
indenture supplemental hereto, as the case may be (or if such Convertible
Security is called
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for redemption or submitted for repayment, then in respect of such Convertible
Security to and including but not after the close of business on the Redemption
or Repayment Date, as the case may be, unless the Company shall default in the
payment due), to convert the principal amount of any such Convertible Security,
or, in the case of any Convertible Security of a denomination greater than
$1,000, any portion of such principal which is $1,000 or an integral multiple
thereof, into that number of fully paid and nonassessable shares of Common Stock
(as such shares shall then be constituted) obtained by dividing the principal
amount of the Convertible Security or portion thereof surrendered for conversion
by the Conversion Price, by surrender of the Convertible Security so to be
converted in whole or in part in the manner provided in Section 1703. Such
conversion shall be effected by the Company.
SECTION 1703. Exercise of Conversion Privilege; Delivery of Common
Stock on Conversion; No Adjustment for Interest or
Dividends.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company pursuant
to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion, in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 1708. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or such Holder's duly
authorized attorney.
As promptly as practicable after the surrender of such Convertible
Security and the receipt of such notice and funds, if any, as aforesaid, the
Company shall deliver at such office or agency to such Holder, or on such
Holder's written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof in accordance with the provisions of this Article and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion as provided in Section 1704. In case any Convertible
Security of a denomination greater than $1,000 shall be surrendered for partial
conversion and subject to Section 302, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on
which such Convertible Security shall have been surrendered (accompanied by the
funds, if any, required by the last paragraph of this Section) and such notice
shall have been received by the Company, as aforesaid, and the person in whose
name any certificate or certificates for shares of Common Stock
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shall be registrable upon such conversion shall be deemed to have become on said
date the holder of record of the shares represented thereby; provided however,
that any such surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the person in whose name the certificates are
to be registered as the record holder thereof for all purposes on the next
succeeding day on which stock transfer books are open, but such conversion shall
be at the Conversion Price in effect on the date upon which such Convertible
Security shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment on a date in such
period) be accompanied by payment, in legal tender or other funds acceptable to
the Company, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted; provided,
however, that no such payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Convertible Securities.
An amount equal to such payment shall be paid by the Company on such Interest
Payment Date to the Holder of such Convertible Security on such Regular Record
Date, provided, however, that if the Company shall default in the payment of
interest on such Interest Payment Date, such amount shall be paid to the person
who made such required payment. Except as provided above in this Section, no
adjustment shall be made for interest accrued on any Convertible Security
converted or for dividends on any shares issued upon the conversion of such
Convertible Security as provided in this Article.
SECTION 1704. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1705. Conversion Price.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
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SECTION 1706. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock (whether
shares of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding Common Stock into a greater number
of securities (including Common Stock), or (iii) combine or reclassify its
outstanding Common Stock into a smaller number of securities (including
Common Stock), the Conversion Price in effect immediately prior thereto
shall be adjusted so that the Holder of any Convertible Security thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned
or have been entitled to receive after the happening of any of the events
described above had such Convertible Security been converted immediately
prior to the happening of such event. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of a subdivision or combination. If, as a
result of an adjustment made pursuant to this subsection (a), the Holder of
any Convertible Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors (whose determination shall be conclusive
and shall be described in a written statement filed with the Trustee and
any conversion agent) shall determine the allocation of the adjusted
Conversion Price between or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment made
pursuant to this subsection (a) of this Section 1706, the Holder of any
Convertible Security thereafter converted shall become entitled to receive
any shares or other securities of the Company other than shares of Common
Stock, thereafter the number of such other shares so received upon
conversion of any Convertible Security shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the shares of Common Stock contained in
this Section 1706, and other provisions of this Article Seventeen with
respect to the shares of Common Stock shall apply on like terms to any such
other shares or other securities.
(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of its Common Stock (or securities
convertible into Common Stock) entitling them (for a period expiring within
45 days after such record date) to subscribe for or purchase Common Stock
at a price per share (or a conversion price per share) less than the
current market price per share of Common Stock (as defined in subsection
(d) below) at such record date, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to such record date by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding on such record date plus the
number of shares which the aggregate offering price of the total number of
shares so offered (or the aggregate initial conversion price of the
convertible securities so offered) would purchase at
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such current market price, and of which the denominator shall be the number
of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered for subscription or purchase
(or into which the convertible securities so offered are initially
convertible). Such adjustment shall be made successively whenever such a
record date is fixed, and shall become effective immediately after such
record date. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than
such current market price, and in determining the aggregate offering price
of such shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors. Common Stock owned by or held for the account of the Company or
any majority owned subsidiary shall not be deemed outstanding for the
purpose of any adjustment required under this subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its
indebtedness or assets (excluding regular quarterly or other periodic or
recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings of the Company or dividends or
distributions referred to in subsection (a) above) or rights or warrants to
subscribe or purchase (excluding those referred to in subsection (b)
above), then in each such case the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a
fraction of which the numerator shall be the current market price per share
(as defined in subsection (d) below) of the Common Stock on such record
date less the then fair market value (as determined by the Board of
Directors whose determination shall be conclusive, and described in a
certificate filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator shall be the
current market price per share (as defined in subsection (d) below) of the
Common Stock. Such adjustment shall be made successively whenever such a
record date is fixed and shall become effective immediately after such
record date. Notwithstanding the foregoing, in the event that the Company
shall distribute any rights or warrants to acquire capital stock ("Rights")
pursuant to this subsection (c), the distribution of separate certificates
representing such Rights subsequent to their initial distribution (whether
or not such distribution shall have occurred prior to the date of the
issuance of such Convertible Securities) shall be deemed to be the
distribution of such Rights for purposes of this subsection (c); provided
that the Company may, in lieu of making any adjustment pursuant to this
subsection (c) upon a distribution of separate certificates representing
such Rights, make proper provision so that each Holder of such Convertible
Security who converts such Convertible Security (or any portion thereof)
(i) before the record date for such distribution of separate certificates
shall be entitled to receive upon such conversion shares of Common Stock
issued with Rights and (ii) after such record date and prior to the
expiration, redemption or termination of such Rights, shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock
issuable upon such conversion, the same number of such Rights as would a
holder of the number of shares of Common Stock that such Convertible
Security so converted would have entitled the
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holder thereof to purchase in accordance with the terms and provisions of
and applicable to the Rights if such Convertible Security were converted
immediately prior to the record date for such distribution. Common Stock
owned by or held for the account of the Company or any majority owned
subsidiary shall not be deemed outstanding for the purpose of any
adjustment required under this subsection (c).
(d) For the purpose of any computation under subsection (b) and
(c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily Closing Prices for the
thirty consecutive days (which are not legal holidays as defined in Section
113) commencing forty-five days (which are not legal holidays as defined in
Section 113) before the day in question. The Closing Price for any day
shall be (i) if the Common Stock is listed or admitted for trading on any
national securities exchange, the last sale price (regular way), or the
average of the closing bid and ask prices if no sale occurred, of Common
Stock on the principal securities exchange on which the Common Stock is
listed, or, if not listed or admitted to trading on any national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ"), (ii) if
not listed or quoted as described in (i), the mean between the closing high
bid and low asked quotations of Common Stock reported by NASDAQ, or any
similar system or automated dissemination of quotations of securities
prices then in common use, if so quoted, or (iii) if not quoted as
described in clause (ii), the mean between the high bid and low asked
quotations for Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid and
asked quotations for Common Stock on at least 5 of the 10 preceding days.
If none of the conditions set forth above is met, the Closing Price of
Common Stock on any day or the average of such Closing Prices for any
period shall be the fair market value of Common Stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by the Company.
(e)(i) Nothing contained herein shall be construed to require an
adjustment in the Conversion Price as a result of the issuance of Common
Stock pursuant to, or the granting or exercise of any rights under, the
Dividend Reinvestment and Optional Cash Payment Plan of ReliaStar Financial
Corp.
(ii) In addition, no adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by
reason of this subsection (e)(ii) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment,
further provided, however, that any adjustments which by reason of this
subsection (e)(ii) are not otherwise required to be made shall be made no
later than 3 years after the date on which occurs an event that requires an
adjustment to be made or carried forward.
(iii) All calculations under this Article Seventeen shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case
may be. Anything in this Section 1706 to the contrary notwithstanding, the
Company shall be entitled to make such
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reductions in the Conversion Price, in addition to those required by this
Section 1706, as it in its discretion shall determine to be advisable in
order that any stock dividends, subdivision of shares, distribution of
rights to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the Company to
its shareholders shall not be taxable.
(f) Whenever the Conversion Price is adjusted, as herein provided,
the Company shall promptly file with the Trustee and any conversion agent
other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date
on which such adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the Holder of each Convertible
Security at such Holder's last address appearing on the Security Register
provided for in Section 305 of this Indenture.
(g) In any case in which this Section 1706 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i)
delivering to the Holder of any Convertible Security converted after such
record date and before the occurrence of such event the additional shares
of Common Stock deliverable upon such conversion by reason of the
adjustment required by such event over and above the Common Stock
deliverable upon such conversion before giving effect to such adjustment
and (ii) paying to such Holder any amount in cash in lieu of any fraction
pursuant to Section 1704, provided, however, that the Company shall deliver
to such Holder a due bill or other appropriate instrument evidencing such
Holder's rights to receive such additional shares, and such cash, upon the
occurrence of the event requiring such adjustment. If such event does not
occur, no adjustments shall be made pursuant to this Section 1706.
SECTION 1707. Effect of Reclassification, Consolidation, Merger or
Sale.
If any of the following events occur, namely (i) any reclassification
or change of outstanding shares of Common Stock deliverable upon conversion of
the Convertible Securities (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination, but including any change in the shares of Common
Stock into two or more classes or series of securities), (ii) any consolidation
or merger to which the Company is a party (other than a consolidation or merger
in which the Company is the continuing corporation and which does not result in
any reclassification of, or change (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination) in, outstanding shares of its Common Stock) or
(iii) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the Company, or
such successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act as in force at the date of execution of such supplemental indenture and
comply with the provisions of Article Nine) providing that each Convertible
Security shall be convertible into
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the kind and amount of shares of stock and other securities or property,
including cash, receivable upon such reclassification, change, consolidation,
merger, sale or conveyance by a holder of a number of shares of Common Stock
deliverable upon conversion of such Convertible Securities immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance. Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article. The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Convertible Securities, at such
holder's address appearing on the Security Register provided for in Section 305
of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
SECTION 1708. Taxes on Shares Issued.
The delivery of stock certificates on conversions of Convertible
Securities shall be made without charge to the Holder converting a Convertible
Security for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the delivery of stock registered in any name other than of
the Holder of any Convertible Security converted, and the Company shall not be
required to deliver any such stock certificate unless and until the person or
persons requesting the delivery thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 1709. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Convertible Securities hereunder
require registration with or approval of any governmental authority under any
Federal or state law before such shares may be validly delivered upon
conversion, the Company will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange, list and keep listed for so long as the Common
Stock shall be so listed on such exchange, upon official notice of issuance, all
Common Stock deliverable upon conversion of the Convertible Securities.
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SECTION 1710. Responsibility of Trustee.
Neither Trustee nor any authenticating agent nor any conversion agent
shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any authenticating agent nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security,
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
Section 601, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Convertible Security for the purpose of conversion or
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
SECTION 1711. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on the Common Stock (other than in cash out of its current or retained
earnings); or
(b) the Company shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares
of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock (other than
a subdivision or combination of its outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to
par value) or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required
or of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and the Company shall cause
to be mailed to each holder of Convertible Securities at such holder's address
appearing on the Security Register, provided for in Section 305 of this
Indenture, as promptly as possible but in any event no less than fifteen days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
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dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, change, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, change, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up or any adjustment in the
Conversion Price required by this Article Seventeen.
SECTION 1712. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all outstanding Convertible Securities.
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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.
RELIASTAR FINANCIAL CORP.
By _____________________________________
Its __________________________________
Attest:
___________________________________
Secretary
_____________________________, not in its
individual capacity but solely as trustee
By _____________________________________
Its __________________________________
[CORPORATE SEAL]
Attest:
___________________________________
Secretary
<PAGE>
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the _________ day of ___________________________, 1996, before me
personally came Wayne R. Huneke , to me known, who, being duly sworn,
---------------------
did depose and say that he resides at Edina Minnesota ; that he is a
-----------------------
Senior Vice President, Chief Financial Officer and Treasurer of ReliaStar
- ------------------------------------------------------------
Financial Corp., a corporation described in and which executed the above
instrument; that he knows the seal of said corporation; that it was so affixed
pursuant to the authority of the Board of Directors of said corporation; and
that he signed his name thereto pursuant to like authority.
__________________________________
Notary Public
<PAGE>
STATE OF ______________ )
)SS.
COUNTY OF ____________ )
On the _________ day of ___________________________, _________, before
me personally came __________________________________________, to me known, who,
being duly sworn, did depose and say that he resides at
________________________________________; that he is a _____________________ of
_____________________________, a Delaware banking corporation described in and
which executed the above instrument; that he knows the seal of said corporation;
that it was so affixed pursuant to the authority of the Board of Directors of
said corporation; and that he signed his name thereto pursuant to like
authority.
__________________________________
Notary Public
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
RELIASTAR FINANCIAL CORP.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of
______________________, __________ (the "Indenture") between ReliaStar Financial
Corp. and ______________________, not in its individual capacity but solely as
trustee (the "Trustee"), covering the above-captioned Debt Securities. This is
to certify that as of the date hereof, __________________ principal amount of
Debt Securities credited to you for our account (i) is owned by persons that are
not United States Persons, as defined below; (ii) is owned by United States
Persons that are (a) foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We undertake
to advise you by tested telex followed by written confirmation if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Debt Securities in bearer form as to all of such Debt
Securities with respect to such of said Debt Securities as then appear in your
books as being held for our account.] We understand that this certificate is
required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), 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 that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to ________________________
principal amount of Debt Securities credited to you for our account and to which
we are not now able to make the certification set forth above. We understand
that definitive Debt Securities cannot be delivered and
<PAGE>
interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated:___________________
[To be dated on or after
________________________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
____________________________________________
(Authorized Signatory)
Name:_______________________________________
Title:______________________________________
_____________________________
*Delete if inappropriate
A-1-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
RELIASTAR FINANCIAL CORP.
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of
______________________, __________ (the "Indenture") between ReliaStar Financial
Corp. _________________________________, as trustee, relating to the offering of
the above-captioned Debt Securities (the "Debt Securities"). Unless herein
defined, terms used herein have the same meaning as given to them in the
Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section 1.165-
12(c)(1)(v)) that holds customers' securities in the ordinary course of its
trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:______________________
[To be dated on or after____________________________
(the date determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
____________________________________________
(Authorized Signatory)
Name:_______________________________________
Title:______________________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
RELIASTAR FINANCIAL CORP.
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, __________________________, of the Global
Security representing the above-captioned issue [which is herewith submitted to
be exchanged for definitive Debt Securities]* [for which we are seeking to
obtain payment of interest]* (the "Submitted Portion"). This is to certify,
pursuant to the Indenture dated as of _______________________, _______ (the
"Indenture") between ReliaStar Financial Corp. and
____________________________________________, as trustee (the "Trustee"), that
we have received in writing, by tested telex or by electronic transmission from
member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of _____________ in
____________ definitive Bearer Securities in the denominations on the attached
Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:____________
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System] [CEDEL S.A.]
By:___________________________________________
__________________
*Delete if inappropriate.
<PAGE>
Exhibit 4(o)
CERTIFICATE OF TRUST
The undersigned, the trustees of ReliaStar Financing II, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- --
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "ReliaStar Financing II."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Wilmington Trust Company
-----------------------------
Rodney Square North
-----------------------------
1100 North Market Street
-----------------------------
Wilmington, Delaware 19890
-----------------------------
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: May 8, 1997
/s/ Wayne R. Huneke
---------------------------------------
Name: Wayne R. Huneke
Title: Trustee
/s/ Richard R. Crowl
---------------------------------------
Name: Richard R. Crowl
Title: Trustee
Wilmington Trust Company,
------------------------
as Trustee
By: /s/ James P. Lawler
------------------------------------
Name: James P. Lawler
---------------------------------
Title: Vice President
--------------------------------
1
<PAGE>
CERTIFICATE OF TRUST
The undersigned, the trustees of ReliaStar Financing III, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- --
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "ReliaStar Financing III."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Wilmington Trust Company
----------------------------
Rodney Square North
----------------------------
1100 North Market Street
----------------------------
Wilmington, Delaware 19890
----------------------------
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: May 8, 1997
/s/ Wayne R. Huneke
---------------------------------------
Name: Wayne R. Huneke
Title: Trustee
/s/ Richard R. Crowl
---------------------------------------
Name: Richard R. Crowl
Title: Trustee
Wilmington Trust Company,
------------------------
as Trustee
By: /s/ James P. Lawler
------------------------------------
Name: James P. Lawler
---------------------------------
Title: Vice President
--------------------------------
2
<PAGE>
CERTIFICATE OF TRUST
The undersigned, the trustees of ReliaStar Financing IV, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- --
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "ReliaStar Financing IV."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Wilmington Trust Company
------------------------------
Rodney Square North
------------------------------
1100 North Market Street
------------------------------
Wilmington, Delaware 19890
------------------------------
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: May 8, 1997
/s/ Wayne R. Huneke
---------------------------------------
Name: Wayne R. Huneke
Title: Trustee
/s/ Richard R. Crowl
---------------------------------------
Name: Richard R. Crowl
Title: Trustee
Wilmington Trust Company,
------------------------
as Trustee
By: /s/ James P. Lawler
------------------------------------
Name: James P. Lawler
---------------------------------
Title: Vice President
--------------------------------
3
<PAGE>
CERTIFICATE OF TRUST
The undersigned, the trustees of ReliaStar Financing V, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- --
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "ReliaStar Financing V."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
Wilmington Trust Company
---------------------------------
Rodney Square North
---------------------------------
1100 North Market Street
---------------------------------
Wilmington, Delaware 19890
---------------------------------
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated: May 8, 1997
/s/ Wayne R. Huneke
---------------------------------------
Name: Wayne R. Huneke
Title: Trustee
/s/ Richard R. Crowl
---------------------------------------
Name: Richard R. Crowl
Title: Trustee
Wilmington Trust Company,
------------------------
as Trustee
By: /s/ James P. Lawler
------------------------------------
Name: James P. Lawler
---------------------------------
Title: Vice President
--------------------------------
4
<PAGE>
Exhibit 4(p)
________________________________________________________________________________
DECLARATION OF TRUST
RELIASTAR FINANCING __
Dated as of _______________, 1997
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................... 1
ARTICLE II
ORGANIZATION
Section 2.1 Name............................................................. 4
Section 2.2 Office........................................................... 4
Section 2.3 Purpose.......................................................... 4
Section 2.4 Authority........................................................ 4
Section 2.5 Title to Property of the Trust................................... 4
Section 2.6 Powers of the Trustees........................................... 5
Section 2.7 Filing of Certificate of Trust................................... 6
Section 2.8 Duration of Trust................................................ 6
Section 2.9 Responsibilities of the Sponsor.................................. 6
Section 2.10 Declaration Binding on Securities Holders....................... 7
ARTICLE III
TRUSTEES
Section 3.1 Trustees......................................................... 7
Section 3.2 Regular Trustees................................................. 7
Section 3.3 Delaware Trustee................................................. 8
Section 3.4 Property Trustee................................................. 8
Section 3.5 Not Responsible for Recitals or Sufficiency of Declaration....... 8
ARTICLE IV
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
Section 4.1 Exculpation...................................................... 9
Section 4.2 Fiduciary Duty................................................... 9
Section 4.3 Indemnification.................................................. 10
Section 4.4 Outside Businesses............................................... 13
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
Section 5.1 Amendments....................................................... 14
Section 5.2 Termination of Trust............................................. 14
Section 5.3 Governing Law.................................................... 15
Section 5.4 Headings......................................................... 15
Section 5.5 Successors and Assigns........................................... 15
Section 5.6 Partial Enforceability........................................... 15
Section 5.7 Counterparts..................................................... 15
</TABLE>
<PAGE>
DECLARATION OF TRUST
OF
RELIASTAR FINANCING __
__________________, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of
_______________, 1997 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Notes of the Note Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified; and
<PAGE>
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
---------
the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
------------
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time, or
------------ -- ---
any successor legislation.
"Commission" means the Securities and Exchange Commission.
----------
"Common Security" means a security representing an undivided
---------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
--------------------------
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Trustee" has the meaning set forth in Section 3.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
4.3(b).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
------------------
Indemnified Person.
"Indenture" means the indenture to be entered into between the Parent
---------
and the Note Trustee and any indenture supplemental thereto pursuant to which
the Notes are to be issued.
2
<PAGE>
"Note Issuer" means the Parent in its capacity as the issuer of the
-----------
Notes under the Indenture.
"Notes" means the series of Notes to be issued by the Note Issuer and
-----
acquired by the Trust.
"Note Trustee" means _________________________, as trustee under the
------------
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Parent" means ReliaStar Financial Corp., a Delaware corporation or
------
any successor entity in a merger.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
------------------
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
---------------
and the Property Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
-------
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
Section 2.1 Name.
----
The Trust created by this Declaration is named "ReliaStar Financing
__." The Trust's activities may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.
Section 2.2 Office.
------
The address of the principal office of the Trust is c/o ReliaStar
Financial Corp., 20 Washington Avenue South, Minneapolis, Minnesota 55401. At
any time, the Regular Trustees may designate another principal office.
Section 2.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Notes, and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incidental thereto. The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
Section 2.4 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
Section 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
4
<PAGE>
Section 2.6 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
-------- -------
Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there
-------- -------
shall be no interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;
(b) in connection with the issue and sale of the Preferred Securities,
at the direction of the Sponsor, to:
(i) execute and file with the Commission a registration
statement on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration
statement on Form 8 A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred Securities ;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors,
and consultants and provide for reasonable compensation for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
5
<PAGE>
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
Section 2.7 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
Section 2.8 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for fifty-five years from the date hereof.
Section 2.9 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to
do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the Trust,
as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agreement and pricing
agreement providing for the sale of the Preferred Securities.
6
<PAGE>
Section 2.10 Declaration Binding on Securities Holders.
-----------------------------------------
Every Person by virtue of having become a holder of a Security or any
interest therein in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of, and shall be bound
by, this Declaration.
ARTICLE III
TRUSTEES
Section 3.1 Trustees.
--------
The number of Trustees initially shall be three (3), and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however, that
-------- -------
the number of Trustees shall in no event be less than two (2); provided further
-------- -------
that one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
who is an employee or officer of, or is affiliated with the Parent (a "Regular
Trustee").
Section 3.2 Regular Trustees.
----------------
The initial Regular Trustees shall be:
Wayne R. Huneke
Richard R. Crowl
(a) Except as expressly set forth in this Declaration, any power of
the Regular Trustees may be exercised by, or with the consent of, any one
such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 2.6 provided, that, the registration statement referred
-------- ----
to in Section 2.6(b)(i), including any amendments thereto, shall be signed
by a majority of the Regular Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her power for the
7
<PAGE>
purposes of signing any documents which the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 2.6.
Section 3.3 Delaware Trustee.
----------------
The initial Delaware Trustee shall be:
____________________________________
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of (S) 3807 of
the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust, the Sponsor or of the Regular Trustees nor shall the Delaware Trustee
have any liability for its own acts or omissions to act except such acts as the
Delaware Trustee is expressly obligated to undertake under this Declaration or
the Business Trust Act and except for the gross negligence or willful misconduct
of the Delaware Trustee.
Section 3.4 Property Trustee.
----------------
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint either the Delaware Trustee or another
trustee (the "Property Trustee") meeting the requirements of an eligible trustee
of the Trust Indenture Act of 1939, as amended, by the execution of an amendment
to this Declaration executed by the Regular Trustees, the Sponsor, the Property
Trustee and the Delaware Trustee.
Section 3.5 Not Responsible for Recitals or Sufficiency of
----------------------------------------------
Declaration.
- -----------
The recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
8
<PAGE>
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence or willful misconduct with respect to such acts
or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters
the Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports
or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount
of assets from which distributions to holders of Securities might properly
be paid.
Section 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration.
The provisions of this Declaration, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law
or in equity, are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that
9
<PAGE>
is, or provides terms that are, fair and reasonable to the Trust or
any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 4.3 Indemnification.
---------------
(a) (i) The Note Issuer shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Company Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to
10
<PAGE>
the best interests of the Trust, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(i) The Note Issuer shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment
in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Trust and except that no such indemnification shall
be made in respect of any claim, issue or matter as to which such
Company Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(ii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iii) Any indemnification under paragraphs (i) and (ii) of this
Section 4.3(a) (unless ordered by a court) shall be made by the Note
Issuer only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
11
<PAGE>
investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 4.3(a) shall be paid by the Note Issuer in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be
determined that such Person is not entitled to be indemnified by the
Note Issuer as authorized in this Section 4.3(a). Notwithstanding the
foregoing, no advance shall be made by the Note Issuer if a
determination is reasonably and promptly made (i) by the Regular
Trustees by a majority vote of a quorum of disinterested Regular
Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs,
by independent legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in
bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to
any criminal proceeding, that such Company Indemnified Person believed
or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty
to the Trust or its Common or Preferred Security Holders.
(v) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 4.3(a)
shall not be deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors
of the Note Issuer or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to
indemnification under this Section 4.3(a) shall be deemed to be
provided by a contract between the Note Issuer and each Company
Indemnified Person who serves in such capacity at any time while this
Section 4.3(a) is in effect. Any repeal or modification of this
Section 4.3(a) shall not affect any rights or obligations then
existing.
(vi) The Note Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Note Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
12
<PAGE>
(vii) For purposes of this Section 4.3(a), references to "the
Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 4.3(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(viii) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 4.3(a) shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
(b) The Note Issuer agrees to indemnify the (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers,
directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Delaware Trustee (each of the Persons
in (i) through (iii) being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person harmless against, any
loss, liability or expense incurred without gross negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. Expenses
(including reasonable legal fees and expenses) incurred by a Fiduciary
Indemnified Person in defending itself against any claim or liability in
connection with this Section 4.3(b) shall be paid by the Note Issuer in
advance of the final disposition of such claim or liability upon receipt of
an undertaking by or on behalf of such Fiduciary Indemnified Person to
repay such amount if it shall ultimately be determined that such Person is
not entitled to be indemnified by the Note Issuer as authorized in this
Section 4.3(b). The obligation to indemnify as set forth in this Section
4.3(b) shall survive the termination of this Declaration.
Section 4.4 Outside Businesses.
------------------
Any Covered Person, the Sponsor and the Delaware Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even
13
<PAGE>
if competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
Section 5.1 Amendments.
----------
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Trustees
and the Sponsor.
Section 5.2 Termination of Trust.
--------------------
(a) The Trust shall dissolve and terminate and, subject to Section
4.3, this Declaration shall be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of the
Sponsor's charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of all
of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
14
<PAGE>
Section 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
Section 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
_____________________________
Name: Wayne R. Huneke
Title: Regular Trustee
_____________________________
Name: Richard R. Crowl
Title: Regular Trustee
___________________________,
as Delaware Trustee
By: _________________________
Name:__________________
Title:_________________
ReliaStar Financial Corp.,
as Sponsor
By: __________________________
Name: Richard R. Crowl
Title: Senior Vice President,
General Counsel and
Secretary
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of ReliaStar Financing I, desiring to
form a business trust pursuant to Delaware Business Trust Act, 12 Del. C. (S)
---- --
3810, hereby certify as follows:
(a) The name of the business trust being formed hereby (the "Trust")
is "ReliaStar Financing __."
(b) The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is
as follows:
_______________________
_______________________
_______________________
_______________________
(c) This Certificate of Trust shall be effective as of the date of
filing.
Dated:______________________
______________________________________
Name: Wayne R. Huneke
Title: Trustee
______________________________________
Name: Richard R. Crowl
Title: Trustee
______________________
as Trustee
______________________________________
By:
Name:
Title:
<PAGE>
Exhibit 4(q)
________________________________________________________________________________
AMENDED AND RESTATED
DECLARATION OF TRUST
RELIASTAR FINANCING __
Dated as of ______________, 1997
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Interpretations and Definitions................................. 2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application................................ 8
Section 2.2 Lists of Holders of Trust Securities............................ 9
Section 2.3 Reports by the Property Trustee................................. 9
Section 2.4 Periodic Reports to Property Trustee............................ 9
Section 2.5 Evidence of Compliance with Conditions Precedent................ 10
Section 2.6 Events of Default; Waiver....................................... 10
Section 2.7 Event of Default; Notice........................................ 11
ARTICLE III
ORGANIZATION
Section 3.1 Name............................................................ 12
Section 3.2 Office.......................................................... 12
Section 3.3 Purpose......................................................... 12
Section 3.4 Authority....................................................... 12
Section 3.5 Title to Property of the Trust.................................. 13
Section 3.6 Powers and Duties of the Regular Trustees....................... 13
Section 3.7 Prohibition of Actions by the Trust and the Trustees............ 16
Section 3.8 Powers and Duties of the Property Trustee....................... 16
Section 3.9 Certain Duties and Responsibilities of the Property Trustee..... 18
Section 3.10 Certain Rights of Property Trustee............................. 20
Section 3.11 Delaware Trustee............................................... 22
Section 3.12 Execution of Documents......................................... 22
Section 3.13 Not Responsible for Recitals or Issuance of Trust Securities... 22
Section 3.14 Duration of Trust.............................................. 23
Section 3.15 Mergers........................................................ 23
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities......................... 24
Section 4.2 Responsibilities of the Sponsor................................. 25
</TABLE>
<PAGE>
<TABLE>
ARTICLE V
TRUSTEES
<S> <C>
Section 5.1 Number of Trustees................................................. 25
Section 5.2 Delaware Trustee................................................... 26
Section 5.3 Property Trustee; Eligibility...................................... 26
Section 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally.. 27
Section 5.5 Initial Regular Trustees........................................... 27
Section 5.6 Appointment, Removal and Resignation of Trustees................... 28
Section 5.7 Vacancies Among Trustees........................................... 29
Section 5.8 Effect of Vacancies................................................ 29
Section 5.9 Meetings........................................................... 30
Section 5.10 Delegation of Power............................................... 30
Section 5.11 Merger, Conversion, Consolidation or Succession to Business....... 30
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions...................................................... 31
ARTICLE VII
ISSUANCE OF TRUST SECURITIES
Section 7.1 General Provisions Regarding Trust Securities...................... 31
Section 7.2 Paying Agent....................................................... 32
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Trust............................................... 33
ARTICLE IX
TRANSFER OF INTEREST
Section 9.1 Transfer of Trust Securities....................................... 34
Section 9.2 Transfer of Certificates........................................... 34
Section 9.3 Deemed Trust Security Holders...................................... 35
Section 9.4 Book Entry Interests............................................... 35
Section 9.5 Notices to Depositary.............................................. 36
Section 9.6 Appointment of Successor Depositary................................ 36
Section 9.7 Definitive Preferred Security Certificates......................... 36
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.................. 37
</TABLE>
ii
<PAGE>
<TABLE>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF TRUST
SECURITIES, TRUSTEES OR OTHERS
<S> <C>
Section 10.1 Liability.......................................................... 37
Section 10.2 Exculpation........................................................ 38
Section 10.3 Fiduciary Duty..................................................... 38
Section 10.4 Indemnification.................................................... 39
Section 10.5 Outside Businesses................................................. 42
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year........................................................ 43
Section 11.2 Certain Accounting Matters......................................... 43
Section 11.3 Banking............................................................ 44
Section 11.4 Withholding........................................................ 44
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments......................................................... 45
Section 12.2 Meetings of the Holders of Trust Securities; Action by Written
Consent............................................................ 46
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF PROPERTY
TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Property Trustee................. 48
Section 13.2 Representations and Warranties of Delaware Trustee................. 49
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices............................................................ 50
Section 14.2 Governing Law...................................................... 51
Section 14.3 Intention of the Parties........................................... 51
Section 14.4 Headings........................................................... 51
Section 14.5 Successors and Assigns............................................. 51
Section 14.6 Partial Enforceability............................................. 52
Section 14.7 Counterparts....................................................... 52
</TABLE>
iii
<PAGE>
EXHIBIT A -- Terms of 8.20% Trust Originated Preferred Securities;
8.20% Trust Originated Common Securities
ANNEX I --
ANNEX II --
EXHIBIT B --
EXHIBIT C -- Underwriting Agreement
iv
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"), dated
and effective as of _________________, 1997, by the undersigned trustees
(together with all other Persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the "Regular
Trustees"), ReliaStar Financial Corp., a Delaware corporation, as trust sponsor
(the "Sponsor"), _________________________________________, a Delaware banking
corporation, as property trustee (the "Property Trustee") and by the holders,
from time to time, of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration.
RECITALS
WHEREAS, the Regular Trustees and the Property Trustee established a
trust (the "Trust") under the Delaware Business Trust Act pursuant to a
Declaration of Trust dated as of ___________, 1997 (the "Original Declaration")
filed with the Secretary of State of Delaware on ___________, 1997, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Notes (as hereinafter defined) of the Note Issuer (as
hereinafter defined);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, it being the intention of the parties hereto that the
Original Declaration be amended and restated in its entirety; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to, or otherwise obtained by,
the Trust will be held in trust for the benefit of the holders, from time to
time, of the securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATIONS AND DEFINITIONS.
In this Declaration, unless the context otherwise requires:
(a) capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections, Exhibits and
Annexes are to Articles, Sections of, Exhibits to and Annexes of this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as hereinafter defined) has
the same meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 9.4.
"Business Day" means any day other than a day on which banking institutions
in New York, New York, Wilmington, Delaware or Minneapolis, Minnesota are
authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time or any
successor legislation.
2
<PAGE>
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Closing Date" means _________________, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be dated as
of _______________, 1997, of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex II to Exhibit A.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officer, director, shareholder,
member, partner, employee, representative or agent of any Regular Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the principal office of the Property
Trustee, at which at any particular time its corporate trust business shall be
administered which office at the date of execution of this Declaration is
located at ___________________________________________________________________
______________________________________________________________________________,
Attn: ______________________________.
"Coupon Rate" has the meaning set forth in Exhibit A.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Declaration" has the meaning set forth in the preamble.
"Deferred Interest" has the meaning set forth in the Indenture.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
3
<PAGE>
"Depositary" means an organization registered as a clearing agency pursuant
to Section 17A of the Exchange Act that is acting as depositary for the
Preferred Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Preferred Securities.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book entry transfers and pledges of securities deposited with the Depositary.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more Authorized
Officers of that Person.
"Dissolution Tax Opinion" has the meaning set forth in Exhibit A.
"Distribution" means a distribution payable to Holders of Trust Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Depositary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Extension Period" has the meaning set forth in Exhibit A.
"Event of Default," in respect of the Trust Securities, means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Notes.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
"Global Certificate" has the meaning specified in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Trust
Security is registered on the books and records of the Trust, such Person being
a beneficial owner within the meaning of the Business Trust Act, provided, that,
in determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Sponsor, as guarantor of the Trust Securities, or any
Affiliate of the Sponsor.
4
<PAGE>
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of _______________, 1997 among the
Note Issuer and the Note Trustee as supplemented by the First Supplemental
Indenture dated as of _______________, 1997 and any other indenture supplemental
thereto.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation Distribution" has the meaning set forth in Exhibit A.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Ministerial Action" has the meaning set forth in Exhibit A.
"Majority in liquidation amount" means, except as provided in the terms of
the Trust Securities and the Trust Indenture Act, Holder(s) of outstanding Trust
Securities voting together as a single class or, as the context may require,
Holder(s) of outstanding Preferred Securities or Holder(s) of outstanding Common
Securities voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Trust Securities of the relevant class.
"90 Day Period" has the meaning set forth in Exhibit A.
"No Recognition Opinion" has the meaning set forth in Exhibit A.
"Note Issuer" means the Sponsor in its capacity as issuer of the Notes.
"Note Trustee" means __________________________, not in its individual
capacity but solely as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Notes" means the series of Notes to be issued by the Note Issuer under the
Indenture to be held by the Property Trustee.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
5
<PAGE>
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Original Declaration" has the meaning set forth in the preamble.
"Paying Agent" has the meaning specified in Section 7.2.
"Payment Amount" has the meaning specified in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, limited liability partnership, trust, unincorporated
association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of _______________, 1997, of the Sponsor in respect of the Preferred
Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Depositary
Participant or as an indirect participant, in each case in accordance with the
rules of such Depositary).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"Pricing Agreement" means the pricing agreement between the Trust, the Note
Issuer, and the underwriters designated by the Regular Trustees with respect to
the offer and sale of the Preferred Securities.
"Pro Rata" has the meaning set forth in Exhibit A.
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"Property Trustee" means _______________________, a Delaware banking
corporation, in its capacity as property trustee, or any successor trustee
meeting the eligibility requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Prospectus Supplement" means that certain Prospectus Supplement dated as
of _______________, 1997 relating to the Preferred Securities.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in Exhibit A.
"Redemption Price" has the meaning set forth in Exhibit A.
"Redemption Tax Opinion" has the meaning set forth in Exhibit A.
"Regular Trustee" means any Trustee other than the Delaware Trustee and the
Property Trustee.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer or assistant trust
officer or any other officer in the Corporate Trust Office of the Property
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means ReliaStar Financial Corp., a Delaware corporation, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as
sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
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"Successor Property Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Securities" has the meaning set forth in Section 3.15(b)(i)(B).
"Tax Event" has the meaning set forth in Exhibit A.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this Declaration as
a trustee, so long as such person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect at
the date as of which this instrument was executed, provided, however, that in
the event the Trust Indenture Act is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement for the offering
and sale of the Preferred Securities attached hereto as Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
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(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such duties imposed by the Trust
Indenture Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 LISTS OF HOLDERS OF TRUST SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i) within 14 days after each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of the Trust
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor any Regular Trustee on behalf of the Trust shall be obligated to
provide such list of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity), provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders
(b) The Property Trustee shall comply with the obligations of an indenture
trustee under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after December 31 of each year, the Property Trustee shall
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313 (d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
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SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default in respect of the Preferred Securities and its
consequences, provided that, if the underlying Event of Default under the
Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of all of the holders of the
Notes to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of all the Holders of the
Preferred Securities.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or an Event of Default
with respect to the Preferred Securities or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of an Event of Default
with respect to the Preferred Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the Event
of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of all of the holders of the
Notes to be waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under the Declaration as
provided below in this
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Section 2.6(b), the Event of Default under the Declaration may only be
waived by the vote of all of the Holders of the Common Securities;
provided that, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Trust Securities. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Declaration but no such waiver
shall extend to any subsequent or other default or Event of Default with respect
to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Event of Default under this Declaration.
SECTION 2.7 EVENT OF DEFAULT; NOTICE.
(a) The Property Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders
of the Trust Securities, notices of all defaults with respect to the Trust
Securities known to the Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7(a) being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Notes or in the payment of any sinking fund installment
established for the Notes, the Property Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Property
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Trust Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture;
or
(ii) any default as to which a Responsible Officer of the Property
Trustee charged with the administration of the Declaration shall have
obtained written or actual notice.
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ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust formed hereby shall be a business trust established under the
Business Trust Act. The Trust is named "ReliaStar Financing __," as such name
may be modified from time to time by the Regular Trustees following written
notice to the Holders of Trust Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Regular Trustees.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o ReliaStar Financial
Corp., 20 Washington Avenue South, Minneapolis, Minnesota 55401. On ten
Business Days written notice to the Holders of Trust Securities, the Regular
Trustees may designate another principal office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes and
(b) except as otherwise limited herein, to engage in only those other activities
necessary or incident thereto. The Trust shall not borrow money, issue debt or
reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust. All provisions of this Declaration shall be interpreted in a
manner consistent with such purposes.
SECTION 3.4 AUTHORITY.
Subject to the limitations provided in this Declaration, including the
provisions of Sections 3.11, 5.2 and 8.1(b), and to the specific duties of the
Property Trustee, the Regular Trustees shall have exclusive and complete
authority to carry out the purposes of the Trust. An action taken by the
Regular Trustees in accordance with their powers shall constitute the act of and
serve to bind the Trust and an action taken by the Property Trustee in
accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Regular Trustees acting on behalf of the Trust, no
Person shall be required to inquire into the authority of the Regular Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
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SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Notes and the
Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common Securities in
accordance with this Declaration; provided, however, that the Trust may issue no
more than one series of Preferred Securities and no more than one series of
Common Securities, and, provided further, that there shall be no interests in
the Trust other than the Trust Securities, and the issuance of Trust Securities
shall be limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issuance and sale of the Preferred Securities,
at the direction of the Sponsor, to:
(i) execute and file with the Commission the registration
statement on Form S-3 prepared by the Sponsor, including any amendments
thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any State in
which the Sponsor has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to the New York Stock Exchange or any other national stock exchange or the
NASDAQ National Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by the
Sponsor relating to the registration of the Preferred Securities under
Section 12(b) of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities;
(c) to acquire the Notes with the proceeds of the sale of the Preferred
Securities and the Common Securities; provided, however, that the Regular
Trustees shall cause legal
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title to the Notes to be held of record in the name of the Property Trustee for
the benefit of the Holders of the Preferred Securities and the Holders of the
Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Tax Event; provided that the Regular Trustees shall consult
with the Sponsor and the Property Trustee before taking or refraining from
taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Trust Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by a
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Trust Securities;
(m) to give prompt written notice to the Holders of the Trust Securities
and the Property Trustee of any notice received from the Note Issuer of its
election (i) to defer payments of interest on the Notes by extending the
interest payment period under the Indenture;
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(n) to execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Note Issuer to ensure that the Notes
will be treated as indebtedness of the Note Issuer for United States
federal income tax purposes,
provided that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Note Issuer.
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SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees shall not, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Notes, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Declaration and of the Trust
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Notes;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Trust Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities; or
(vii) other than as provided in this Declaration or Exhibit A
(A) direct the time, method and place of exercising any trust or power
conferred upon the Note Trustee with respect to the Notes, (B) waive any
past default that is waivable under Section 513 of the Indenture, (C)
exercise any right to rescind or annul any declaration that the principal
of all the Notes shall be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the Notes where such
consent shall be required unless the Trust shall have received an opinion
of counsel to the effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes the
Trust will not be classified as a grantor trust.
SECTION 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Notes shall be owned by and held of record in
the name of the Property Trustee in trust for the benefit of the Holders of the
Trust Securities. The right, title and interest of the Property Trustee to the
Notes shall vest automatically in each Person who may hereafter be appointed as
Property Trustee in accordance with Section 5.6. Such vesting shall be
effective whether or not conveyancing documents with regard to the Notes have
been executed and delivered.
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(b) The Property Trustee shall not transfer its right, title and interest
in the Notes to the Regular Trustees or to the Delaware Trustee (if the Property
Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of the
Trust Securities and, upon the receipt of payments of funds made in respect
of the Notes held by the Property Trustee, deposit such funds into the
Property Trustee Account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the Property Trustee
Account in accordance with Section 6.1. Funds in the Property Trustee
Account shall be held uninvested until disbursed in accordance with this
Declaration. The Property Trustee Account shall be an account that is
maintained with a banking institution the rating on whose long term
unsecured indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act or shall be an account maintained in the Corporate Trust
Department of the Property Trustee;
(ii) engage in such ministerial activities as shall be necessary
or appropriate to effect the redemption of the Preferred Securities and the
Common Securities to the extent the Notes are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular Trustees
in accordance with the terms of the Trust Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Notes to Holders of Trust Securities upon occurrence of
certain special events (as may be defined in the terms of the Trust
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Trust Securities.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Trust Securities.
(e) The Property Trustee shall take any Legal Action which arises out of
or in connection with an Event of Default or the Property Trustee's duties and
obligations under this Declaration or the Trust Indenture Act.
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(f) The Property Trustee shall not resign as a trustee of the Trust unless
either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Trust Securities pursuant to
the terms of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Notes under the Indenture and, if
an Event of Default occurs and is continuing, the Property Trustee shall, for
the benefit of Holders of Trust Securities, enforce its rights as holder of the
Notes subject to the rights of the Holders pursuant to the terms of such Trust
Securities.
(h) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section 3.8
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration and no implied covenants shall be read into this Declaration against
the Property Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration and the
Property Trustee shall not be liable except for the performance of such
duties
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and obligations as are specifically set forth in this Declaration, and
no implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Trust Securities at the time outstanding relating
to the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or adequate
indemnity against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Notes and the Property Trustee
Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of the
Notes or the payment of any taxes or assessments levied thereon or in
connection therewith;
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(vii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except
to the extent otherwise required by law;
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property Trustee be liable for
the default or misconduct of the Regular Trustees or the Sponsor; and
(ix) the Property Trustee shall have no liability for or with
respect to any statement contained in any registration or offering
materials prepared in connection with the Trust Securities.
SECTION 3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by a
Direction or an Officers' Certificate;
(iii) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other experts
and the advice or opinion of such counsel and experts with respect to legal
matters or advice within the scope of such expert's area of expertise shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it
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hereunder in good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Property Trustee shall have the right at
any time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request
or direction of any Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, acceptable to the Property
Trustee, against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Property Trustee, provided that nothing contained in this
Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Trust Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property Trustee to
so act or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (A) may request instructions from the
Holders of the Trust Securities, which instructions may only be given by
the Holders of the same proportion in liquidation amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
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terms of the Trust Securities in respect of such remedy, right or action,
(B) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall be protected in
acting in accordance with such instructions; and
(xi) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts, or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 3.11 DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other than Sections
5.2 and 8.1(b), the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Sections 5.2 and 8.1(b), the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. The Delaware Trustee
shall be entitled to the benefit of all of the immunities and indemnities that
the Property Trustee is entitled to under this Declaration.
SECTION 3.12 EXECUTION OF DOCUMENTS.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, a majority of, or, if there are
only two, any Regular Trustee or, if there is only one, such Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6;
provided that, the registration statement referred to in Section 3.6(b)(i),
- -------- ----
including any amendments thereto, shall be signed by all of the Regular
Trustees.
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF TRUST
SECURITIES.
The recitals contained in this Declaration and the Trust Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the
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property of the Trust or any part thereof. The Trustees make no representations
as to the validity or sufficiency of this Declaration or the Trust Securities.
SECTION 3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for 55 years from the Closing Date.
SECTION 3.15 MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the Regular Trustees
and without the consent of the Holders of the Trust Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State if:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Trust Securities; or
(B) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank with respect
to Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Note Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the Property
Trustee as the Holder of the Notes;
(iii) the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of issuance,
on any national securities exchange, the NASDAQ National Market or other
organization on which the Preferred Securities are then listed;
(iv) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders
of the Trust Securities (including any Successor Securities) in any
material respect;
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(v) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities or any Successor Securities to be
downgraded by any nationally recognized statistical rating organization;
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of the
Holders of the Trust Securities (including any Successor Securities) in
any material respect other than with respect to any dilution of the
Holders' interest in the new entity; and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(viii) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the
Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity not to be classified for United States
federal income tax purposes as a grantor trust.
ARTICLE IV
SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all the Common Securities
issued by the Trust, in an amount equal to at least 3% of the capital of the
Trust, at the same time as the Preferred Securities are sold.
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SECTION 4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a registration
statement on Form S-3 in relation to the Preferred Securities, including any
amendments thereto;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York Stock
Exchange or any other national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees shall initially be three (3), and:
(a) at any time before the issuance of any Trust Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities, provided, however, that, the number of Trustees shall in
-------- -------
no event be less than two (2); provided further that one (1) Trustee, in the
-------- -------
case of a natural person, shall be a person who
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is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); (2) there shall be at least one Trustee who is an employee
or officer of, or is affiliated with the Parent (a "Regular Trustee"); and (3)
one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application. Except as otherwise provided, the Delaware Trustee's
sole duty shall be to, upon the request of the other Trustees or the Sponsor,
execute any documents and maintain custody of any records required to form,
maintain the existence of, or dissolve the Trust under the Business Trust Act.
SECTION 5.3 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
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(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
(d) The Indenture and the Preferred Securities Guarantee shall be deemed to
be specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be _________________________.
SECTION 5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE
GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more Authorized
Officers.
SECTION 5.5 INITIAL REGULAR TRUSTEES.
(a) The initial Regular Trustees shall be Wayne R. Huneke and Richard R.
Crowl.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6, provided, that, the registration statement referred to
-------- ----
in Section 3.6, including any amendments thereto, shall be signed by a majority
of the Regular Trustees; and
(d) A Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing any documents which the Regular Trustees have power
and authority to cause the Trust to execute pursuant to Section 3.6.
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SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Trust Securities, by written instrument
executed by Sponsor; and
(ii) after the issuance of any Trust Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities voting
as a class at a meeting of the Holders of the Common Securities.
(b) The Trustee that acts as:
(i) Property Trustee shall not be removed in accordance with Section
5.6(a) until a Successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3 (a "Successor Property Trustee") has
been appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the Regular
Trustees and the Sponsor; and
(ii) Delaware Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to
act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted such appointment by written
instrument executed by such Successor Delaware Trustee and delivered to the
Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by any instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect on such delivery or upon such
later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
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(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the Holders of the Trust
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, as the Property Trustee or the Delaware Trustee if the
resigning Property Trustee or Delaware Trustee delivers an instrument of
resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.6
within 60 days after delivery to the Sponsor and the Trust of an instrument of
resignation, the resigning Property Trustee or Delaware Trustee, as applicable,
may petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 5.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying existence of such vacancy by a majority of the Regular Trustees shall
be conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers
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granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 5.9 MEETINGS.
Meetings of the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a meeting by a
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
SECTION 5.10 DELEGATION OF POWER.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Property
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Trustee or the Delaware Trustee, as the case may be, shall be the successor of
the Property Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such 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 other than as required by the Business Trust
Act.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS.
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Trust Securities. Distributions shall be made on
the Preferred Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Note Issuer makes a payment of interest (including Deferred Interest (as defined
in the Indenture)), premium and principal on the Notes held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount to
Holders.
ARTICLE VII
TRUST SECURITIES
SECTION 7.1 GENERAL PROVISIONS REGARDING TRUST SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
preferred securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit A and incorporated
herein by reference (the "Preferred Securities") and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Exhibit A (the "Common Securities").
The Trust shall have no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by the Regular
Trustees (or if there are more than two Regular Trustees by any two of the
Regular Trustees). Such signatures may be the manual or facsimile signatures of
the present or any future Regular Trustee. Typographical and other minor errors
or defects in any such reproduction of any such signature shall not affect the
validity of any Certificate. In case
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any Regular Trustee of the Trust who shall have signed any of the Trust
Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by any such persons who, at the actual date of execution of such Trust Security,
shall be the Regular Trustees of the Trust, although at the date of the
execution and delivery of the Declaration any such person was not such a Regular
Trustee. Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks or identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be required
to comply with any law or with any rule or regulation of any stock exchange on
which Trust Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the issuance of the Trust
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Trust Securities as provided in this Declaration,
the Trust Securities so issued shall be deemed to be validly issued, fully paid
and non-assessable.
(e) Every Person, who, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 PAYING AGENT.
In the event that the Preferred Securities are not in book-entry only form,
the Trust shall maintain in the Borough of Manhattan, City of New York, State of
New York, an office or agency where the Preferred Securities may be presented
for payment ("Paying Agent"). Any Paying Agent shall comply with Section
3.17(b) of the Trust Indenture Act. The Trust may appoint the Paying Agent and
may appoint one or more additional paying agents in such other locations as it
shall determine. The term "Paying Agent" includes any additional paying agent.
The Trust may change any Paying Agent without prior notice to any Holder. The
Trust shall notify the Property Trustee of the name and address of any Paying
Agent not a party to this Declaration. If the Trust fails to appoint or
maintain another entity as Paying Agent, the Property Trustee shall act as such.
The Trust or any of its Affiliates may act as Paying Agent.
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ARTICLE VIII
TERMINATION
SECTION 8.1 TERMINATION OF TRUST.
(a) The Trust shall terminate on the earlier of:
(i) ________, 20__;
(ii) upon the bankruptcy of any Holder of Common Securities or the
Sponsor;
(iii) upon the filing of a certificate of dissolution or its
equivalent with respect to any Holder of Common Securities or the Sponsor;
the filing of a certificate of cancellation with respect to the Trust or
the revocation of any Holder of Common Securities, or the Sponsor's,
charter and the expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iv) upon the entry of a decree of judicial dissolution of any
Holder of Common Securities, the Sponsor or the Trust;
(v) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Trust Securities;
(vi) upon the occurrence and continuation of a Tax Event pursuant
to which the Trust shall have been dissolved in accordance with the terms
of the Trust Securities and all of the Notes endorsed thereon shall have
been distributed to the Holders of Trust Securities in exchange for all of
the Trust Securities; or
(vii) before the issuance of any Trust Securities, with the consent
of all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Delaware Trustee shall file a certificate of cancellation
with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
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ARTICLE IX
TRANSFER OF INTEREST
SECTION 9.1 TRANSFER OF TRUST SECURITIES.
(a) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Trust Securities. Any transfer or purported transfer of any
Trust Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
provided that, any such transfer is subject to the conditions precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
SECTION 9.2 TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of Certificates and
of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other governmental charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration and the documents
incorporated by reference herein.
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SECTION 9.3 DEEMED TRUST SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Trust Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Trust Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4 BOOK ENTRY INTERESTS.
Unless otherwise specified in the terms of the Preferred Securities, the
Preferred Securities Certificates, on original issuance, will be issued in the
form of one or more fully registered, global Preferred Security Certificates
(each, a "Global Certificate"), to be delivered to DTC, the initial Depositary,
by, or on behalf of, the Trust. Such Global Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co., the
nominee of DTC, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Certificates, except as provided in
Section 9.7. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the payment of
Distributions on the Global Certificates and receiving approvals, votes or
consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Preferred
Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict with
any other provisions of the Declaration, the provisions of this Section 9.4
shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Depositary and shall be limited to those established
by law and agreements between such Preferred Security Beneficial Owners and the
Depositary and/or the Depositary Participants. The Depositary shall receive and
transmit payments of Distributions on the Global Certificates to such Depositary
Participants. The Depositary will make book entry transfers among the
Depositary Participants.
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SECTION 9.5 NOTICES TO DEPOSITARY.
Whenever a notice or other communication to the Preferred Security Holders
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7 the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Depositary and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 9.6 APPOINTMENT OF SUCCESSOR DEPOSITARY.
If any Depositary elects to discontinue its services as securities
depositary with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Depositary with respect to such
Preferred Securities.
SECTION 9.7 DEFINITIVE PREFERRED SECURITY CERTIFICATES.
If:
(a) a Depositary elects to discontinue its services as securities
depositary with respect to the Preferred Securities and a successor Depositary
is not appointed within 90 days after such discontinuance pursuant to Section
9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor to
terminate the book entry system through the Depositary with respect to the
Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Depositary,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Preferred Security Certificates to be delivered to Preferred Security
Beneficial Owners in accordance with the instructions of the Depositary.
Neither the Trustees nor the Trust shall be liable for any delay in delivery of
such instructions and each of them may conclusively rely on, and shall be
protected in relying on, said instructions of the Depositary. The Definitive
Preferred Security Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the Regular
Trustees, as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate or as may be required
to comply with any law the Trustees may deem appropriate, or as may be required
to comply with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange, the NASDAQ
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National Market or other organization on which the Preferred Securities are
listed or admitted for trading, or to conform to usage.
SECTION 9.8 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them harmless;
then:
(c) in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, any two Regular Trustees on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section 9.8 shall
constitute conclusive evidence of an ownership interest in the relevant Trust
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF TRUST SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the Trust
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the Trust
Securities, which return shall be made solely from assets of the Trust; or
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(ii) be required to pay to the Trust or to any Holder of Trust
Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act:
(i) the Holder of the Common Securities shall be liable for all
of the debts and obligations of the Trust (other than with respect to the
Trust Securities) to the extent not satisfied out of the Trust's assets;
and
(ii) the Holders of the Preferred Securities shall be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation Law
of the State of Delaware.
SECTION 10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Trust Securities might properly be paid.
SECTION 10.3 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
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(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by this Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 INDEMNIFICATION.
(a) (i) The Note Issuer shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in right of the Trust) by reason of the fact that such
Person is or was a Company Indemnified Person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such Person in connection with such action, suit
or proceeding if such Person acted in good faith and in a manner such
Person reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had no
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reasonable cause to believe such Person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which such
Person reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such Person's conduct was unlawful.
(ii) The Note Issuer shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that such Person is or was a Company Indemnified Person
against expenses (including attorneys' fees) actually and reasonably
incurred by such Person in connection with the defense or settlement of
such action or suit if such Person acted in good faith and in a manner such
Person reasonably believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be made in respect
to any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such Person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, such Person shall be indemnified, to the
full extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by such Person in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Note
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because such Person has met the applicable standard of
conduct set forth in paragraphs (i) and (ii) of this Section 10.4(a). Such
determination shall be made (1) by the Regular Trustees by a majority vote
of a quorum consisting of such Regular Trustees who were not parties to
such action, suit or proceeding, (2) if such a quorum is not obtainable,
or, even if obtainable, if a quorum of disinterested Regular Trustees so
directs, by independent
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legal counsel in a written opinion, or (3) by the Common Security Holder of
the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Note Issuer in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that such Person is not
entitled to be indemnified by the Note Issuer as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be made by the
Note Issuer if a determination is reasonably and promptly made (1) by the
Regular Trustees by a majority vote of a quorum of disinterested Regular
Trustees, (2) if such a quorum is not obtainable, or, even if obtainable,
if a quorum of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (3) the Common Security Holder of the
Trust, that, based upon the facts known to the Regular Trustees, counsel or
the Common Security Holder at the time such determination is made, such
Company Indemnified Person acted in bad faith or in a manner that such
Person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe such
Person's conduct was unlawful. In no event shall any advance be made in
instances where the Regular Trustees, independent legal counsel or Common
Security Holder reasonably determine that such Person deliberately breached
such Person's duty to the Trust or its Common or Preferred Security
Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Note
Issuer or Preferred Security Holders of the Trust or otherwise, both as to
action in such Person's official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a contract between
the Note Issuer and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in effect. Any repeal
or modification of this Section 10.4(a) shall not affect any rights or
obligations then existing.
(vii) The Note Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against such Person and incurred by
such Person in any such capacity, or arising out of such Person's status as
such, whether or not the Note
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Issuer would have the power to indemnify such Person against such liability
under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any Person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as such Person would have with respect to
such constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a Person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
(b) The Note Issuer agrees to indemnify the (i) Property Trustee, (ii) the
Delaware Trustee, (iii) any Affiliate of the Property Trustee and the Delaware
Trustee, and (iv) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being
referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability, claim or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration or the Trust hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the satisfaction and discharge of this Declaration. To secure the
same, each Fiduciary Indemnified Person shall have a lien on the property and
assets of the Trust subordinate only to the rights and interests thereon of the
Holders of the Preferred Securities.
SECTION 10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Note Issuer, the Delaware Trustee and
the Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the
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Note Issuer, the Delaware Trustee or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Note Issuer, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year by a firm of independent certified public accountants selected by the
Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Trust Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Trust Securities any United States federal income tax
information statement required by the Code, containing such information with
regard to the Trust Securities held by each Holder as is required, by the Code
and the Treasury Regulations, and any comparable statements required to be
provided under the law of any other taxing
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jurisdiction. Notwithstanding any right under the Code or other law to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority an annual United States federal income tax
return Form 1041 or such other form required by United States federal income tax
law, and any other tax returns or reports required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
SECTION 11.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Notes held by the Property Trustee shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be deposited in
the Property Trustee Account. The sole signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Property Trustee
shall designate the sole signatories for the Property Trustee Account.
SECTION 11.4 WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to Distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder. In the event of
any claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made to any Holder, the Trust may reduce subsequent
Distributions to such Holder by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Trust Securities, this Declaration may only be amended by a written
instrument approved and executed by:
(i) a majority of the Regular Trustees;
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any purported amendment shall be void
and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from the Trust
and the Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee shall have first received an opinion of
counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Trust Securities); and an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Declaration (including the terms of the
Preferred Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
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(c) At such time after the Trust has issued any Trust Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Trust Securities may be effected only
with such additional requirements as may be set forth in the terms of such Trust
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without the
consent of all of the Holders of the Trust Securities.
(e) Article IV shall not be amended without the consent of the Holders of
a Majority in liquidation amount of the Common Securities.
(f) The rights of the holders of the Common Securities under Article V to
increase or decrease the number of and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities.
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Trust Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration ;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or other exemption from the
requirement to register as an Investment Company under the Investment
Company Act or written change in the interpretation or application thereof
by any legislative body, court, government agency or regulatory authority
which amendment; and
(v) to modify, eliminate and add to any provision of this
Declaration to such extent as may be necessary. The Regular Trustees agree
to provide the Property Trustee with a copy of any prior amendment as soon
as practicable after such amendment has been executed by all required
parties.
provided, however, such amendment does not have a material adverse effect on the
rights, preferences or privileges of the Holders of the Trust Securities
SECTION 12.2 MEETINGS OF THE HOLDERS OF TRUST SECURITIES; ACTION BY
WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Trust Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the Trust
Securities) to consider and act on any matter on which Holders of such class of
Trust Securities are
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entitled to act under the terms of this Declaration, the terms of the Trust
Securities or the rules of any national securities exchange, the NASDAQ National
Market or other organization on which the Preferred Securities are listed or
admitted for trading.
(b) Except to the extent otherwise provided in the terms of the Trust
Securities, the following provisions shall apply to meetings of Holders of Trust
Securities:
(i) notice of any such meeting shall be given to all the Holders of
Trust Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote, consent
or approval of the Holders of Trust Securities is permitted or required
under this Declaration or the rules of any stock exchange, the NASDAQ
National Market or other organization on which the Preferred Securities are
listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Trust Securities. Any action that may be
taken at a meeting of the Holders of Trust Securities may be taken without
a meeting if a consent in writing setting forth the action so taken is
signed by the Holders of Trust Securities owning not less than the minimum
amount of Trust Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of Trust
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Trust Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written ballot submitted
to a Holder for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Trust Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Trust Securities is
entitled to participate, including waiving notice of any meeting, or voting
or participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Trust
Securities executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by
the General Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder as if the Trust were a Delaware
corporation and the Holders of the Trust Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Trust Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms of
the Trust Securities, the Trust Indenture Act or the listing rules of any
stock exchange, the
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NASDAQ National Market or other organization on which the Preferred
Securities are then listed or trading otherwise provides, the Regular
Trustees, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Trust Securities, including notice of
the time, place or purpose of any meeting at which any matter is to be
voted on by any Holders of Trust Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF
PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the successor Property Trustee's acceptance of its appointment as
Property Trustee, that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of the United
States or the State of Delaware, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration and with its principal place of business in ____________________,
Delaware.
(b) The execution, delivery and performance by the Property Trustee of
this Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of this Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter or
By-laws of the Property Trustee.
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(d) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority governing its banking or trust
powers is required for the execution, delivery or performance by the Property
Trustee, of this Declaration.
SECTION 13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
successor Delaware Trustee represents and warrants to the Trust and to the
Sponsor at the time of its acceptance of its appointment as Delaware Trustee,
that:
(a) The Delaware Trustee is either a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
(b) The execution, delivery and performance by the Delaware Trustee of
this Declaration has been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. This Declaration has been duly executed and
delivered by the Delaware Trustee, constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of this Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the charter or
By-laws of the Delaware Trustee.
(d) The Delaware Trustee is a Delaware banking corporation with trust
powers, duly organized, validly existing and in good standing under the laws of
the State of Delaware, with trust power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration.
(e) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority governing its banking or trust
powers is required for the execution, delivery or performance by the Delaware
Trustee, of this Declaration.
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<PAGE>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 NOTICES.
All notices, instructions, requests and demands provided for in this
Declaration shall be in writing, duly signed by the party giving same, and shall
be delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Trust Securities):
ReliaStar Financing __
c/o ReliaStar Financial Corp.
20 Washington Avenue South
Minneapolis, Minnesota 55401
Telecopy Number: (612) 372-5479
(b) if given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Holders of the Trust Securities):
_________________________________
_________________________________
_________________________________
_________________________________
Attn: ___________________________
Telecopy Number: ________________
(c) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as the Delaware Trustee may give notice of to the
Holders of the Trust Securities):
_________________________________
_________________________________
_________________________________
_________________________________
Attn: ___________________________
Telecopy Number: ________________
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<PAGE>
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
ReliaStar Financial Corp.
20 Washington Avenue South
Minneapolis, Minnesota 55401
Telecopy: (612) 372-5479
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 14.2 GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes as an association
taxable as a corporation or a partnership but rather that the Trust be
characterized as a grantor trust or otherwise in a manner such that each Holder
of Trust Securities will be treated as owning an undivided beneficial interest
in the Notes. The provisions of this Declaration shall be interpreted to
further this intention of the parties.
SECTION 14.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5 SUCCESSORS AND ASSIGNS.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor, the Trustees
and the Property Trustee shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
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SECTION 14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such to persons or circumstances other
than those to which it is held invalid, shall not be affected thereby.
SECTION 14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees and the Property Trustee to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
___________________________________
Name: Wayne R. Huneke
as Regular Trustee
___________________________________
Name: Richard R. Crowl
as Regular Trustee
_________________________,
as Delaware and Property Trustee
___________________________________
Name:______________________________
Title:_____________________________
ReliaStar Financial Corp.,
as Sponsor
___________________________________
Name:______________________________
Title:_____________________________
<PAGE>
EXHIBIT A
TERMS OF
8.20% TRUST ORIGINATED PREFERRED SECURITIES
8.20% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Declaration of Trust, dated as of
______________, 1997 (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus referred to below):
1. DESIGNATION AND NUMBER.
(a) "Preferred Securities." 5,000,000 Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
$125,000,000 million, and a liquidation amount with respect to the assets of the
Trust of $25 per Preferred Security, are hereby designated for the purposes of
identification only as "8.20% Trust Originated Preferred Securities" (the
"Preferred Securities"). The Certificates evidencing the Preferred Securities
shall be substantially in the form attached hereto as Annex I, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice or to conform to the rules of any stock exchange on
which the Preferred Securities are listed.
(b) "Common Securities." 154,639.176 Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of
$3,865,979.40 million, and a liquidation amount with respect to the assets of
the Trust of $25 per Common Security, are hereby designated for the purposes of
identification only as "8.20% Trust Originated Common Securities" (the "Common
Securities"). The Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex II, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. DISTRIBUTIONS.
(a) Distributions payable on each Trust Security will be fixed at a rate
per annum of 8.20% (the "Coupon Rate") of the stated liquidation amount of $25
per Trust Security, such rate being the rate of interest payable on the Notes to
be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the Coupon Rate (to
the extent permitted by applicable law). The term "Distribution" as used herein
includes such cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Notes held by the Property Trustee. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
<PAGE>
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for which Distributions
are computed, Distributions will be computed on the basis of the actual number
of days elapsed per 30-day month.
(b) Distributions on the Trust Securities will be cumulative, will accrue
from _______________, 1997, and will be payable quarterly in arrears, on March
31, June 30, September 30, and December 31 of each year, commencing on June 30,
____, except as otherwise described below. The Note Issuer has the right under
the Indenture to defer payments of interest by extending the interest payment
period from time to time on the Notes for a period not exceeding 20 consecutive
quarters (each, an "Extension Period") and, during such Extension Period, during
which Extension Period no interest shall be due and payable on the Notes,
provided that no Extension Period shall last beyond the date of maturity of the
Notes. As a consequence of such deferral, Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Note Issuer may further extend such Extension
Period; provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters. Payments of
accrued Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Note Issuer may commence a new Extension Period, subject
to the above requirements.
(c) Distributions on the Trust Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates which payment dates correspond to the interest payment dates on the Notes.
Subject to any applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Preferred Securities will be
made as described under the heading "Description of the Preferred Securities --
Book-Entry Only Issuance -- The Depository Trust Company" in the Prospectus
Supplement dated _____________, 1997 (the "Prospectus Supplement") to the
Prospectus dated _______________, 1997 (together, the "Prospectus") of the Trust
included in the Registration Statement on Form S-3 of the Sponsor and the Trust.
The relevant record dates for the Common Securities shall be the same record
dates as for the Preferred Securities. If the Preferred Securities shall not
continue to remain in book-entry only form, the relevant record dates for the
Preferred Securities shall conform to the rules of any stock exchange on which
the securities are listed and, if none, shall be selected by the Regular
Trustees, which dates shall be at least one Business Day but less than 60
Business Days before the relevant payment dates, which payment dates correspond
to the interest payment dates on the Notes. Distributions payable on any Trust
Securities that are not
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punctually paid on any payment date, as a result of the Note Issuer having
failed to make a payment under the Notes, will cease to be payable to the Person
in whose name such Trust Securities are registered on the relevant record date,
and such Distribution will instead be payable to the Person in whose name such
Trust Securities are registered on the special record date or other specified
date determined in accordance with the Indenture. If any date on which
Distributions are payable on the Trust Securities is not a Business Day, then
payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and 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.
(d) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Trust
Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Trust Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Trust Securities after satisfaction of liabilities to creditors of the Trust an
amount equal to the aggregate of the stated liquidation amount of $25 per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless, in connection with
such dissolution, winding-up or termination, Notes in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Trust Securities
shall be distributed on a Pro Rata basis to the Holders of the Trust Securities
in exchange for such Trust Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Trust Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
(a) Upon the repayment of the Notes in whole or in part, whether at
maturity or upon redemption either at the option of the Note Issuer or pursuant
to a tax event as described below, the proceeds from such repayment or payment
shall be simultaneously applied to redeem Trust Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Notes so
repaid or redeemed at a redemption price of $25 per Trust Security plus an
amount equal to accrued and unpaid Distributions thereon at the date of the
redemption, payable in cash (the "Redemption Price"). Holders will be given not
less than 30 nor more than 60 days notice of such redemption.
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<PAGE>
(b) If fewer than all the outstanding Trust Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be as described in
Paragraph 4(f)(ii) below.
(c) If a Tax Event shall occur and be continuing the Regular Trustees
shall dissolve the Trust and, after satisfaction of liabilities to creditors of
the Trust, cause Notes held by the Property Trustee, having an aggregate
principal amount equal to the aggregate stated liquidation amount of the Trust
Securities, to be distributed to the Holders of the Trust Securities in
liquidation of such Holders' interests in the Trust on a Pro Rata basis, within
90 days following the occurrence of such Tax Event (the "90-Day Period");
provided, however, that as a condition of such dissolution and distribution, the
Regular Trustee shall have received an opinion of a nationally recognized
independent tax counsel experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on published revenue rulings of the Internal
Revenue Service, to the effect that the Holders of the Trust Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of the dissolution of the Trust and the distribution of Notes, and
provided, further, that, if at the time there is available to the Trust the
opportunity to avoid, within the 90-day Period, the Tax Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure that has no adverse effect on the Trust,
the Note Issuer, the Sponsor or the Holders of the Trust Securities
("Ministerial Action"), the Trust or the Sponsor will pursue such Ministerial
Action in lieu of dissolution.
If (i) after receipt of a Dissolution Tax Opinion by and upon the request
of the Regular Trustees, the Note Issuer has received an opinion of a nationally
recognized independent tax counsel experienced in such matters (a "Redemption
Tax Opinion") to the effect that, as a result of a Tax Event, there is more than
an insubstantial risk that the Note Issuer would be precluded from deducting the
interest on the Notes for United States federal income tax purposes even if the
Notes were distributed to the Holders of Trust Securities in liquidation of such
Holders' interests in the Trust, as described in this Paragraph 4(c), or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, the Note Issuer shall have
the right, upon not less than 30 nor more than 60 days notice, to redeem the
Notes in whole or in part for cash within 90 days following the occurrence of
such Tax Event and, following such redemption, Trust Securities with an
aggregate liquidation amount equal to the aggregate principal amount of the
Notes so redeemed shall be redeemed by the Trust at the Redemption Price on a
Pro Rata basis; provided, however, that, if at the time there is available to
the Trust the opportunity to avoid, within such 90-Day Period, the Tax Event by
some Ministerial Action, the Trust or the Sponsor will pursue such Ministerial
Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have received an
opinion of a nationally recognized independent tax counsel experienced in such
matters (as "Dissolution
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<PAGE>
Tax Opinion") to the effect that on or after the date of the Prospectus
Supplement, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority therefor or
therein, or (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority, which amendment or change is enacted,
promulgated, issued or announced or which interpretation or pronouncement is
issued or announced or which action is taken, (c) any interpretation or
pronouncement by any such body, court, agency or authority that provides for a
position with respect to such laws or regulations that differs from the
theretofore generally accepted position, or (d) any action taken by any
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated or effective, or which interpretation or pronouncement is
issued or announced, or which action is taken, in each case on or after the date
of the Prospectus Supplement, there is more than an insubstantial risk that (i)
the Trust is or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to interest accrued or received on the
Notes, (ii) interest payable by the Note Issuer to the Trust on the Notes is
not, or within 90 days of the date thereof will not be, deductible, in whole or
in part, by the Note Issuer for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of taxes, duties or other governmental charges.
On and from the date fixed by the Regular Trustees for any distribution of
Notes and dissolution of the Trust: (i) the Trust Securities will no longer be
deemed to be outstanding, (ii) the Depositary or its nominee, as the record
Holder of the Preferred Securities, will receive a registered global certificate
or certificates representing the Notes to be delivered upon such distribution,
and (iii) any certificates representing Trust Securities not held by the
Depositary or its nominee (or any successor Depositary or its nominee) will be
deemed to represent beneficial interests in the Notes having an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on, such Trust Securities until such
certificates are presented to the Note Issuer or its agent for transfer or
reissue.
(d) The Trust may not redeem fewer than all the outstanding Trust
Securities unless all accrued and unpaid Distributions have been paid on all
Trust Securities for all quarterly Distribution periods terminating on or before
the date of redemption.
(e) If the Notes are distributed to holders of the Trust Securities,
pursuant to the terms of the Indenture, the Note Issuer will use its best
efforts to have the Notes listed on the New York Stock Exchange or on such other
exchange, the NASDAQ National Market or other organization as the Preferred
Securities were listed immediately prior to the distribution of the Notes.
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<PAGE>
(f) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of distribution of
Notes in exchange for, the Trust Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Trust
Securities to be redeemed or exchanged not fewer than 30 nor more than 60
days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Notes.
For purposes of the calculation of the date of redemption or exchange and
the dates on which notices are given pursuant to this Paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Trust Securities. Each Redemption/Distribution Notice shall be addressed
to the Holders of Trust Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with
respect to any Holder shall affect the validity of the redemption or
exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Preferred
Securities are to be redeemed, the Preferred Securities to be redeemed
shall be redeemed Pro Rata from each Holder of Preferred Securities, it
being understood that, in respect of Preferred Securities registered in the
name of and held of record by the Depository or its nominee (or any
successor Depositary or its nominee) or any nominee, the distribution of
the proceeds of such redemption will be made to each Depositary (or Person
on whose behalf such nominee holds such securities) in accordance with the
procedures applied by such Depositary or nominee.
(iii) If Trust Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, which notice may only be issued if the
Notes are redeemed as set out in this Paragraph 4 (which notice will be
irrevocable), then (A) while the Preferred Securities are in book-entry
only form, with respect to the Preferred Securities, by 12:00 noon, New
York City time, on the redemption date, provided that the Note Issuer has
paid the Property Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Notes, the Property Trustee will
deposit irrevocably with the Depositary or its nominee (or successor
Depositary or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give the
Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities, and (B) with respect to
Preferred Securities issued in definitive form and Common Securities,
provided, that the Note Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Notes, the Property Trustee will pay the relevant Redemption Price to the
Holders of such Trust Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on
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<PAGE>
the redemption date. If a Redemption/Distribution Notice shall have been
given and funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit, or on the
redemption date, as applicable, Distributions will cease to accrue on the
Trust Securities so called for redemption and all rights of Holders of such
Trust Securities so called for redemption will cease, except the right of
the Holders of such Trust Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular Trustees nor
the Trust shall be required to register or cause to be registered the
transfer of any Trust Securities that have been so called for redemption.
If any date fixed for redemption of Trust Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business
Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price in respect of any Trust Securities is improperly withheld
or refused and not paid either by the Property Trustee or by the Sponsor as
guarantor pursuant to the Preferred Securities Guarantee or Common
Securities Guarantee, as the case may be, Distributions on such Trust
Securities will continue to accrue from the original redemption date to the
actual date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purpose of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depositary or its nominee if the Global Certificates have
been issued or, if Definitive Preferred Security Certificates have been
issued, to the Holder thereof, and (B) in respect of the Common Securities,
the Holders thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), provided the
acquirer is not a Holder of Common Securities or the obligor under the
Indenture, the Sponsor or any of its subsidiaries may at any time and from
time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES
(a) Except as provided under Paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirements set forth in this paragraph, the Holders
of a Majority in liquidation amount of the Preferred Securities, voting
separately as a class, may direct the time, method, and place of conducting any
proceeding for any remedy
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<PAGE>
available to the Property Trustee, or the exercise of any trust or power
conferred upon the Property Trustee under the Declaration, including (i)
directing the time, method, and place of conducting any proceeding for any
remedy available to the Note Trustee, or exercising any trust or power conferred
on the Note Trustee with respect to the Notes, (ii) waive any past default and
its consequences that is waivable under Section 513 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Notes shall be due and payable; provided, however, that, where a consent
-------- -------
under the Notes would require the consent or act of all of the holders of the
Notes affected thereby, the Property Trustee may only give such consent or take
such action at the written direction of all of the Holders of the Preferred
Securities. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method, and place of conducting
any remedy available to the Property Trustee or the Note Trustee as set forth
above, the Property Trustee shall not take any action in accordance with the
directions of the Holders of the Preferred Securities under this paragraph 5(b)
unless the Property Trustee has obtained an opinion of tax counsel to the effect
that, for the purposes of United States federal income tax, the Trust will not
fail to be classified as a grantor trust on account of such action. If the
Property Trustee fails to enforce its rights under the Declaration, any Holder
of Preferred Securities may institute a legal proceeding directly against any
Person to enforce the Property Trustee's rights under the Declaration without
first instituting a legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, if a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Note Issuer to pay interest or principal on the Notes on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Notes having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder on or after the
respective due date specified in the Notes. Except as provided in the preceding
sentence, the Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Notes.
Any approval or direction of Holders of Preferred Securities may be given
at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Trust Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which the written consent is sought, and (iii)
instructions for the delivery of proxies or consents.
A-8
<PAGE>
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Notes in accordance with the Declaration and the terms of the
Trust Securities.
Notwithstanding that Holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Paragraphs 6(b), 6(c) and 7, and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after an Event of
Default with respect to the Preferred Securities has been cured, waived or
otherwise eliminated and subject to the requirements of the second to last
sentence of this Paragraph 6(c), the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or the exercise of any trust or power conferred upon the
Property Trustee under the Declaration, including (i) directing the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred on the Property
Trustee with respect to the Notes, (ii) waive any past default and its
consequences that is waivable under Section 513 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Notes shall be due and payable, provided, however, that, where a consent or
-------- -------
action under the Indenture would require the consent or act of all of the
holders of the Notes affected thereby, the Property Trustee may only give such
consent or take such action at the written direction of all of the Holders of
the Common Securities. Pursuant to this Section 6(c), the Property Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Pursuant to this Paragraph 6(c), the
Property Trustee shall not revoke any action previously authorized or approved
by a vote of the Holders of the Common Securities. Other than with respect to
directing the time, method, and place of conducting any remedy available to the
Property Trustee or the Note Trustee as set forth above, the Property Trustee
shall not take any action in accordance with the directions of the Holders of
the Common Securities under this paragraph unless the Property Trustee has
obtained an opinion of tax counsel to the effect that, for the purposes of
United States federal income tax, the Trust will not fail
A-9
<PAGE>
to be classified as a grantor trust on account of such action. If the Property
Trustee fails to enforce its rights under the Declaration, any Holder of Common
Securities may, after written request to the Property Trustee to enforce such
rights, institute a legal proceeding directly against any Person to enforce the
Property Trustee's rights under the Declaration, without first instituting a
legal proceeding against the Property Trustee or any other person.
Any approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Trust Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought, and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the Notes
in accordance with the Declaration and the terms of the Trust Securities.
7. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Trust Securities, whether by
way of amendment to the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.1
of the Declaration, then the Holders of outstanding Trust Securities, as a
class, will be entitled to vote on such amendment or proposal (but not on any
other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation amount of the Trust Securities, voting together as a single class;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Trust Securities.
(b) In the event the consent of the Property Trustee as the holder of the
Notes, the Preferred Securities Guarantee and the Common Securities Guarantee is
required under the Indenture with respect to any amendment, modification or
termination of the Indenture, the Notes, the Preferred Securities Guarantee, or
the Common Securities Guarantee, the
A-10
<PAGE>
Property Trustee shall request the direction of the Holders of the Trust
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification, or termination as directed by
a Majority in liquidation amount of the Trust Securities voting together as a
single class; provided, however, that where a consent under the Indenture would
require the consent of all of the holders of the Notes, the Property Trustee may
only give such consent at the direction of all of the Holders of the Trust
Securities; provided, further, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Trust Securities
under this Paragraph 7(b) unless the Property Trustee has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account of
such action.
8. PRO RATA.
A reference to any payment, distribution or treatment as being "Pro Rata"
shall mean pro rata to each Holder of Trust Securities according to the
aggregate liquidation amount of the Trust Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Trust Securities
outstanding unless, in relation to a payment, an Event of Default under the
Indenture has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Preferred Securities
pro rata according to the aggregate liquidation amount of Preferred Securities
held by the relevant Holder relative to the aggregate liquidation amount of all
Preferred Securities outstanding, and, only after satisfaction of all amounts
owed to the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
9. RANKING.
The Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing under the Indenture in respect of the Notes held by the
Property Trustee, the rights of Holders of the Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights to payment of the Holders of the Preferred
Securities.
10. LISTING.
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
A-11
<PAGE>
11. ACCEPTANCE OF TRUST SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS.
The Holders of the Trust Securities shall have no preemptive rights to
subscribe for any additional securities.
13. MISCELLANEOUS.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Trust at
its principal place of business.
A-12
<PAGE>
ANNEX I
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
**[This Preferred Security is a Global Certificate within the meaning of
the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary") or a nominee
of the Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Declaration and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of the Depositary to the Trust or its agent for registration of transfer,
exchange or payment, and any Preferred Security issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of the Depositary and any payment hereon is made to Cede & Co. or such other
entity as is requested by an authorized representative of the Depositary, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number Number of Preferred Securities
CUSIP NO. _________
Certificate Evidencing Preferred Securities
of
RELIASTAR FINANCING __
Preferred Securities
(liquidation amount $25 per Preferred Security)
RELIASTAR FINANCING __, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that
________________________ (the "Holder") is the registered owner of preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the 8.20% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the
<PAGE>
provisions of the Declaration of Trust of the Trust dated as of ______________,
1997, as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Preferred Securities as set forth
in Exhibit A to the Declaration. Capitalized terms used herein but not defined
shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Preferred Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the holder agrees to treat, for United States federal income
tax purposes, the Notes as indebtedness and the Preferred Securities as evidence
of indirect beneficial ownership in the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate this _____ day
of __________, 1997.
Wayne R. Huneke
as Trustee
____________________________________
Richard R. Crowl
as Trustee
____________________________________
1-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a rate
per annum of 8.20% (the "Coupon Rate") of the stated liquidation amount of
$25.00 per Preferred Security, such rate being the rate of interest payable on
the Notes to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the Coupon
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Notes held by the Property Trustee and to
the extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distributions period for which
Distributions are computed, Distributions will be computed on a basis of the
actual number of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on March 31, June 30, September 30 and
December 31 of each year, commencing on June 30, 1997, to Holders of record
____________ days prior to such payment dates, which payment dates shall
correspond to the interest payment dates on the Notes. The Note Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Notes for a period not
exceeding 20 consecutive quarters (each an "Extension Period") and, as a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded
quarterly during any such extension Period. Prior to the termination of any
such Extension Period, the Note Issuer may further extend such Extension Period;
provided, that such Extension Period together with all such previous and further
- -------- ----
extensions thereof may not exceed 20 consecutive quarters. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Note Issuer may commence a new Extension Period, subject to the above
requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
1-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:___________________________
Signature:______________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
1-4
<PAGE>
ANNEX II
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
RELIASTAR FINANCING __
Common Securities
(liquidation amount $25 per Common Security)
RELIASTAR FINANCING __, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that _____________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the 8.20%
Trust Originated Common Securities (liquidation amount $25 per Common Security)
(the "Common Securities"). The Common Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Declaration of Trust of the
Trust dated as of _______________, 1997, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Exhibit A to the Declaration. Capitalized terms used
herein but not defined shall have the meanings given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee
to the extent provided therein. The Trust will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture to the Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States federal income
tax purposes the Notes as indebtedness and the Common Securities as evidence of
indirect beneficial ownership in the Notes.
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ____day of
____________, 1997.
Wayne R. Huneke
as Trustee
_________________________________
Richard R. Crowl
as Trustee
_________________________________
II-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:___________________________
Signature:______________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
II-3
<PAGE>
EXHIBIT 4(r)
================================================================================
RELIASTAR FINANCIAL CORP.
TO
______________________, as Trustee
________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of ____________, 1997
____% Subordinated Deferrable
Interest Notes Due _____________, ____
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I Definitions........................................................ 2
ARTICLE II General Terms and Conditions of the Notes......................... 3
Section 2.1 Designation and Principal Amount............................ 3
Section 2.2 Maturity.................................................... 3
Section 2.3 Form and Payment............................................ 3
Section 2.4 Global...................................................... 4
Section 2.5 Interest.................................................... 5
Section 2.6 Authorized Denominations.................................... 6
Section 2.7 Conversion.................................................. 6
Section 2.8 Paying Agent and Authenticating Agent....................... 6
ARTICLE III Redemption of the Notes.......................................... 7
Section 3.1 Special Event Redemption.................................... 7
Section 3.2 Optional Redemption by Company.............................. 7
Section 3.3 No Sinking Fund............................................. 8
Section 3.4 No Repayment................................................ 8
ARTICLE IV Extension of Interest Payment Period.............................. 8
Section 4.1 Extension of Interest Payment Period........................ 8
Section 4.2 Notice of Extension......................................... 9
ARTICLE V Expenses........................................................... 9
ARTICLE VI Additional Events of Default and Covenants........................10
Section 6.1 Events of Default...........................................10
Section 6.2 Covenants...................................................10
ARTICLE VII No Defeasance....................................................12
ARTICLE VIII Form of Note....................................................12
ARTICLE IX Original Issue of Notes...........................................19
Section 9.1 Original Issue of Notes.....................................19
Section 9.2 Reports by the Trustee......................................19
ARTICLE X Limitation on Waivers and Consents.................................19
ARTICLE XI Miscellaneous.....................................................20
Section 11.1 Ratification of Indenture..................................20
Section 11.2 Trustee Not Responsible for Recitals.......................20
Section 11.3 Governing Law..............................................20
Section 11.4 Separability...............................................20
Section 11.5 Counterparts...............................................20
Section 11.6 Third Party Beneficiaries..................................20
</TABLE>
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of ___________, 1997 (the "First
Supplemental Indenture"),between ReliaStar Financial Corp., a Delaware
corporation (the "Company"), and __________________ not in its individual
capacity but solely as trustee (the "Trustee") under the Indenture dated as of
______________, 1997 between the Company and the Trustee (the "Indenture").
RECITALS OF THE COMPANY
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debt Securities to be known
as its ____% Junior Subordinated Deferrable Interest Notes due ______________,
____ (the "Notes"), the form and substance of such Notes and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, ReliaStar Financing __, a Delaware statutory business trust (the
"Trust"), has offered to the public $___________ aggregate liquidation amount of
its ____% Trust Originated Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering in $____________ aggregate
principal amount of the Notes;
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture; and
WHEREAS, all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms and to make the Notes,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company have been performed, and execution and delivery
of this First Supplemental Indenture have been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes
by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Notes and the terms, provisions and
conditions thereof, the Company covenants and agrees with the Trustee as
follows:
<PAGE>
ARTICLE I
Definitions
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Common Securities; (iii) Common Securities
Guarantee; (iv) Delaware Trustee; (v) Depositary; (vi) Dissolution Tax Opinion;
(vii) Distribution; (viii) Ministerial Action; (ix) No Recognition Opinion; (x)
Preferred Securities Certificates; (xi) Preferred Securities Guarantee; (xii)
Property Trustee; (xiii) Redemption Tax Opinion; (xiv) Regular Trustees; (xv)
Tax Event; and (xvi) Trust Securities; and
(g) the following terms have the meanings given to them in this Section
1.l(g):
"Additional Interest" has the meaning given such term in Section 2.5(c).
-------------------
"Compounded Interest" has the meaning given such term in Section 4.l.
-------------------
"Coupon Rate" has the meaning given such term in Section 2.5 (a).
-----------
"Declaration" means the Declaration of Trust dated as of _______________,
-----------
1997 executed by the Company, as sponsor, and the trustees of the Trust and the
holders from time to time of undivided beneficial interests in the Trust, as
amended.
"Deferred Interest" means Additional Interest and Compounded Interest.
-----------------
"Dissolution Event" means that as a result of the occurrence and
-----------------
continuation of a Tax Event, the Trust is to be dissolved in accordance with the
Declaration, and the Notes held by the Property Trustee are to be distributed to
the holders of the Trust Securities issued by the Trust pro rata in accordance
with the Declaration.
2
<PAGE>
"Extended Interest Payment Period" has the meaning given such term in
--------------------------------
Section 4.1.
"Maturity Date" means the date on which the Notes mature and on which the
-------------
principal shall be due and payable together with all accrued and unpaid interest
thereon, including Deferred Interest, if any.
"90 Day Period" has the meaning given to such term in Section 3.1.
-------------
"Non Book-Entry Preferred Securities" has the meaning given such term in
-----------------------------------
Section 2.4(a).
"Redemption Price" has the meaning given to such term in Section 3.1.
----------------
"Reporting Date" means that date that is one year from the date first
--------------
written herein and each one year anniversary of such date thereafter.
"Stated Maturity Date" means ______________, ____.
--------------------
ARTICLE II
General Terms and Conditions of the Notes
Section 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated the
"____% Junior Subordinated Deferrable Interest Notes due ______________, ____",
limited in aggregate principal amount to _______________ million (except for
Debt Securities of such series authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debt Securities of such
series pursuant to Sections 304, 305, 306, 906 or 1303 of the Indenture), which
amount shall be as set forth in a Company Order for the authentication and
delivery of the Notes pursuant to Section 303 of the Indenture.
Section 2.2 Maturity.
The Maturity Date will be the Stated Maturity Date.
Section 2.3 Form and Payment.
Except as provided in Section 2.4, the Notes shall be issued as Registered
Securities in fully registered certificated form without interest coupons.
Principal and interest on the Notes issued in certificated form will be payable,
the transfer of such Notes will be registrable and such Notes will be
exchangeable for Notes bearing identical terms and
3
<PAGE>
provisions at the office or agency of the Trustee in the City of _____________,
Delaware; provided, however, that payment of interest may be made at the option
-------- -------
of the Company by check mailed to the Holder at such address as shall appear in
the Security Register or by wire transfer to such account as may have been
appropriately designated by such Holder. Notwithstanding the foregoing, so long
as the Holder of any Notes is the Property Trustee, the payment of the principal
of and interest, including Deferred Interest, if any, on such Notes held by the
Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee. The Notes will be denominated in U.S.
dollars and payments of principal and interest on the Notes shall be made in
U.S. dollars.
Section 2.4 Global Security.
(a) In connection with a Dissolution Event, the Notes in certificated form
may be presented to the Trustee by the Property Trustee in exchange for a global
Note in an aggregate principal amount equal to all Outstanding Debt Securities
of such series (a "Global Security") to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to the instructions of
the Regular Trustees. The Company upon any such presentation shall execute a
Global Security in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. Payments on the Notes issued as a Global
Security will be made to the Depositary.
If any Preferred Securities are held in non book-entry certificated form,
the Notes in certificated form may be presented to the Trustee by the Property
Trustee and any Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Depositary or its nominee
("Non Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Notes presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which time
such Preferred Security Certificates will be canceled, and a Note registered in
the name of the holder of the Preferred Security Certificate or the transferee
of the holder of such Preferred Security Certificate, as the case may be, with
an aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate canceled will be executed by the Company and
delivered to the Trustee together with a Company Order for authentication and
delivery in accordance with the Indenture and this First Supplemental Indenture.
On issue of such Notes, Notes with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be deemed to have
been canceled.
(b) A Global Security may be transferred, in whole but not in part, only
to another nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor Depositary.
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(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company, in its sole discretion,
determines that the Global Security shall be exchangeable for definitive
registered securities or if an Event of Default shall have occurred, the Company
will execute, and, subject to Article Two of the Indenture, the Trustee will
authenticate and deliver the Notes in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security. In addition, the Company may at any time determine that the Notes
shall no longer be represented by a Global Security. In such event the Company
will execute and, subject to Article Two of the Indenture, the Trustee will
authenticate and deliver the Notes in definitive registered form without
coupons, in authorized denominations, and in a principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
Upon the exchange of the Global Security for such Notes in definitive registered
form without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Notes in definitive registered form issued in
exchange for the Global Security shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Notes to the Depositary for delivery to
the Persons in whose names such Notes are so registered.
(d) If any Debt Securities of this series are issued in global form, the
U.S. Depositary for such global Debt Securities shall be The Depository Trust
Company, or any successor to such U.S. Depositary appointed pursuant to the
Indenture.
Section 2.5 Interest.
(a) Each Note will bear interest at the rate of ____% per annum (the
"Coupon Rate") from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly, payable
(subject to the provisions of Article IV) quarterly in arrears on each Interest
Payment Date, commencing on ______________, 1997, to the Person in whose name
such Note or any Predecessor Security is registered, at the close of business on
the Regular Record Date for such interest installment, which, in respect of any
Notes of which the Property Trustee is the Holder or a Global Security, shall be
the close of business on the Business Day next preceding that Interest Payment
Date. Notwithstanding the foregoing sentence, if the Preferred Securities are
no longer in book-entry only form or if pursuant to the Indenture the Notes are
not represented by a Global Security, the Company
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may select a Regular Record Date for such interest installment which shall be
any date at least one Business Day before an Interest Payment Date. The Interest
Payment Dates for the Notes shall be March 31, June 30, September 30 and
December 31.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed will be computed on the
basis of the actual number of days elapsed in such a 30-day month. In the event
that any date on which interest is payable on the Notes 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, notwithstanding the
provisions of Section 113 of the Indenture, 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.
(c) If at any time while the Property Trustee is the Holder of any Notes,
the Trust or the Property Trustee, on behalf of the Trust, is required to pay
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property Trustee, on behalf of
the Trust, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee, on behalf of the
Trust, after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee, on
behalf of the Trust, would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
Section 2.6 Authorized Denominations.
The Notes shall be issuable in denominations of $25 and integral multiples
of $25 in excess thereof.
Section 2.7 Conversion.
The Notes are not subject to conversion at the option of the Holder or
otherwise.
Section 2.8 Paying Agent and Authenticating Agent.
_____________________ is hereby appointed as Paying Agent and Security
Registrar for the Notes, and the appointment of _____________________ as
Authenticating Agent is hereby ratified and approved.
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ARTICLE III
Redemption of the Notes
Section 3.1 Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular Trustees shall
have been informed by tax counsel rendering the Dissolution Tax Opinion that a
No Recognition Opinion cannot be delivered to the Trust, then, notwithstanding
Section 3.2(a) but subject to Section 3.2(b), the Company shall have the right,
upon not less than 30 days nor more than 60 days notice to the Holders of the
Notes, to redeem the Notes in whole or in part for cash at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price") within
90 days following the occurrence of such Tax Event (the "90 Day Period");
provided, however, that, if at the time there is available to the Company the
- -------- -------
opportunity to eliminate, within the 90 Day Period, the Tax Event by taking some
Ministerial Action, the Company shall pursue such Ministerial Action in lieu of
redemption; and provided, further, that the Company shall have no right to
-------- -------
redeem the Notes while the Trust is pursuing any Ministerial Action pursuant to
its obligations under the Declaration. The Redemption Price shall be paid prior
to 12:00 noon, New York time, on the Redemption Date or such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York time, on
the date such Redemption Price is to be paid.
Section 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the provisions of
Article Eleven of the Indenture, except as otherwise specified in this First
Supplemental Indenture, the Company shall have the right to redeem the Notes, in
whole or in part, from time to time, on or after March 29, 2001, at the
Redemption Price. Any redemption pursuant to this paragraph will be made upon
not less than 30 nor more than 60 days' notice to the Holders of the Notes, at
the Redemption Price. If the Notes are only partially redeemed pursuant to this
Section 3.2, the Notes will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, however, that, if at the time of
-------- -------
redemption the Notes are registered as a Global Security, the Depositary shall
determine the principal amount of such Notes credited to each of its participant
accounts to be redeemed. The Redemption Price shall be paid prior to 12:00
noon, New York time, on the Redemption Date or at such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York time, on
the date such Redemption Price is to be paid.
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(b) If a partial redemption of the Notes would result in the delisting of
the Preferred Securities issued by the Trust from any national securities
exchange or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Notes in whole.
Section 3.3 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
Section 3.4 No Repayment.
The Notes are not subject to repayment at the option of the Holders.
ARTICLE IV
Extension of Interest Payment Period
Section 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time during the term of the Notes,
from time to time, to defer payments of interest by extending the interest
payment period of such Notes for up to 20 consecutive quarters (the "Extended
Interest Payment Period"); provided, that during any such Extended Interest
Payment Period, (a) the Company shall not declare or pay dividends on, make any
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to any of its capital stock, and (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Notes. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest thereon
at the Coupon Rate compounded quarterly for each quarter of the Extended
Interest Payment Period ("Compounded Interest"). At the end of the Extended
Interest Payment Period the Company shall pay all interest accrued and unpaid on
the Notes, including any Deferred Interest that shall be payable, to the Holders
of the Notes in whose names the Notes are registered in the Security Register on
the first Regular Record Date after the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarters.
Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof.
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<PAGE>
Section 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the Company
shall give written notice to the Regular Trustees, the Property Trustee, the
Delaware Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (a) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (b) the date the Trust is required to give notice of the record date
or the date such Distributions are payable to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only Holder of the Notes at the
time the Company selects an Extended Interest Payment Period, the Company shall
give the Holders of the Notes and the Trustee written notice of its selection of
such Extended Interest Payment Period 10 Business Days before the earlier of (i)
the next succeeding Interest Payment Date, or (ii) the date the Company is
required to give notice of the Regular Record Date or Interest Payment Date of
such interest payment to the New York Stock Exchange or other applicable self-
regulatory organization or to Holders of the Notes.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
ARTICLE V
Expenses
In connection with the offering, sale and issuance of the Notes to the
Property Trustee in connection with the sale of the Trust Securities by the
Trust, the Company shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Notes, including compensation of the Trustee under the Indenture in
accordance with the provisions of Section 607 of the Indenture;
(b) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust; and
(c) pay all other debts and obligations of the Trust (other than with
respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization
of the Trust, the fees and expenses of the Property Trustee, the trustee under
the Preferred Securities Guarantee and the Common Securities
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Guarantee and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including, without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses or
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets).
ARTICLE VI
Additional Events of Default and Covenants
Section 6.1 Events of Default.
In addition to the Events of Default set forth in the Indenture, an "Event
of Default", whenever used in the Indenture, this First Supplemental Indenture
or the Notes, shall include the voluntary or involuntary dissolution or winding
up of the business of the Trust or other termination of the existence of the
Trust, other than in connection with (i) the distribution of the Notes to
holders of the Trust Securities in liquidation of their interests in the Trust,
(ii) the redemption of all of the outstanding Trust Securities, or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the Declaration.
Section 6.2 Covenants.
In addition to the covenants set forth in Article X of the Indenture, the
following covenants shall apply to the Notes:
(a) Limitation on Dividends; Transactions with Affiliates.
If (i) there shall have occurred any event that would constitute an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the Preferred Securities Guarantee or
Common Securities Guarantee relating to the Trust or (iii) the Company
shall have given notice of its election to defer payments of interest on
the Notes by extending the interest payment period as provided herein and
such period, or any extension thereof, shall be continuing, then (A) the
Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or make a liquidation payment with
respect to any of its capital stock, and (B) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Company which rank pari passu
with or junior to the Notes; provided, however, that restriction (A) above
-------- -------
does not apply to any stock dividends paid by the Company where the
dividend stock is the same as that on which the dividend is being paid.
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(b) Covenants as to the Trust.
For so long as the Trust Securities remain outstanding, the Company
will (i) maintain 100% direct or indirect ownership of the Common
Securities, provided, however, that any permitted successor of the Company
-------- -------
under the Indenture may succeed to the Company's ownership of the Common
Securities, (ii) use its reasonable efforts to cause the Trust (a) to
remain a business trust, except in connection with a distribution of the
Notes, the redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and
(b) to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes,
and (iii) to use its reasonable efforts to cause each holder of Trust
Securities to be treated as owning an individual beneficial interest in the
Notes.
(c) Acknowledgment of Rights of Holders of Preferred Securities.
The Company acknowledges that, with respect to any Notes held by the
Trust or a trustee of the Trust, if the Property Trustee fails to enforce
its rights under the Indenture and this First Supplemental Indenture as the
Holder of the Notes held as the assets of the Trust, any holder of
Preferred Securities may institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under the Indenture and
this First Supplemental Indenture without first instituting any legal
proceedings against such Property Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to
pay interest or principal on the Notes on the date such interest or
principal is otherwise payable (or in the case of redemption, on the
Redemption Date), the Company acknowledges that a holder of Preferred
Securities may directly institute a proceeding for enforcement of payment
to such holder of the principal of or interest on the Notes having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date specified in
the Notes.
(d) Listing of Notes.
If the Notes are to be issued as a Global Security in connection with
the distribution of the Notes to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company will, if the
Notes are not already so listed, use its best efforts to list such Notes on
the New York Stock Exchange or on such other national securities exchange,
the NASDAQ National Market or other organization on which the Preferred
Securities are then listed.
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ARTICLE VII
No Defeasance
The Notes shall not be subject to defeasance as set forth in Section 403 or
Article XV of the Indenture.
ARTICLE VIII
Form of Note
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[**IF THE NOTE IS TO BE A GLOBAL SECURITY, INSERT - This Debt Security is a
Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debt Security is exchangeable for Global Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debt Security
(other than a transfer of this Debt Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary or another nominee
of the Depositary) may be registered except in limited circumstances. Every
Debt Security delivered upon registration of transfer of, or in exchange for, or
in lieu of this Global Security shall be a Global Security, subject to the
foregoing, except in the limited circumstances described above.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the 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
requested by an authorized representative of DTC (or to such other entity 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 ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.]
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No. _________________
$____________________
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST NOTE
DUE ______________, ____
ReliaStar Financial Corp., a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _______________, or
registered assigns, the sum of ____________ Dollars on ______________, ____, and
to pay interest on said principal sum from ______________, 1997, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
March 31, June 30, September 30 and December 31 of each year commencing
______________, 1997, at the rate of ____% per annum until the principal hereof
shall have become due and payable, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Debt
Security is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Debt
Security or one or more Predecessor Securities is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the close of business on the Business Day next preceding such Interest
Payment Date [**IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE DEBT
SECURITIES ARE NO LONGER REPRESENTED BY A GLOBAL SECURITY [**OR IF THE PROPERTY
TRUSTEE IS NOT THE HOLDER] - which shall be the close of business on the ____
Business Day next preceding such Interest Payment Date.] Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Regular Record Date and may be paid to
the Person in whose name this Debt Security or one or more Predecessor
Securities is registered at the close of business on a Special Record Date to be
fixed by the Trustee for the payment of such Defaulted Interest, notice whereof
shall be given to the registered Holders of this series of Debt Securities not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as
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<PAGE>
more fully provided in the Indenture. The principal of and the interest on this
Debt Security shall be payable at the office or agency of the Trustee maintained
for that purpose in _____________, Delaware in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
-------- -------
Company payment of interest may be made by check mailed to the registered Holder
at such address as shall appear in the Security Register or by wire transfer to
such account as may have been appropriately designated by such Holder.
Notwithstanding the foregoing, so long as the Holder of this Debt Security is
the Property Trustee, the payment of the principal of and interest on this Debt
Security will be made at such place and to such account as may be designated by
the Property Trustee.
The indebtedness evidenced by this Debt Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt and shall be pari passu with all Trust
Related Securities, and this Debt Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Debt Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided, and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each Holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debt Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Debt Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated ____________________
RELIASTAR FINANCIAL CORP.
By______________________________________
Attest:
By ____________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series of Debt Securities
described in the within-mentioned Indenture.
______________________________, or ______________________________
not in its individual capacity but solely as Authentication Agent
as Trustee
By _______________________ By ______________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Debt Security is one of a duly authorized series of debt securities of
the Company (herein sometimes referred to as the "Debt Securities"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of ______________, 1997, duly executed and
delivered between the Company and _______________, as Trustee (the "Trustee"),
as supplemented by the First Supplemental Indenture dated as of ______________,
1997, between the Company and the Trustee (as so supplemented, the "Indenture"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
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<PAGE>
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Debt Securities. By the terms of the Indenture, the Debt Securities are
issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This Debt Security
is one of the series designated on the face hereof, limited in aggregate
principal amount to $_______________.
Upon the occurrence and continuation of a Tax Event, in certain
circumstances, this Debt Security will become due and payable at a price equal
to 100% of the principal amount hereof plus any accrued but unpaid interest to
the Redemption Date (the "Redemption Price"). The Redemption Price shall be
paid prior to 12:00 noon, New York time, on the Redemption Date or at such
earlier time as the Company determines. The Company shall also have the right
to redeem this Debt Security at the option of the Company, without premium or
penalty, in whole or in part at any time on or after March 29, 2001 (an
"Optional Redemption") or at any time in certain circumstances upon the
occurrence of a Tax Event, at the Redemption Price. Any redemption pursuant to
this paragraph will be made upon not less than 30 nor more than 60 days notice
at the Redemption Price. If the Debt Securities of this series are only
partially redeemed by the Company pursuant to an Optional Redemption, the Debt
Securities of this series will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, however, that if, at the time of
-------- -------
redemption, the Debt Securities of this series are registered as a Global
Security, the Depositary shall determine the principal amount of such Debt
Securities credited to each of its participant accounts to be redeemed.
In the event of redemption of this Debt Security in part only, a new Debt
Security or Debt Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default shall have occurred and be continuing, the
principal of all of the Debt Securities of this series may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of Outstanding Debt Securities of each series affected, to
execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Debt Securities; provided, however, that no such supplemental
-------- -------
indenture shall without the consent of the Holder of each Debt Security affected
thereby, (i) change the Stated Maturity of the principal or any installment of
principal or any installment of interest (other than as contemplated herein);
(ii) reduce the amount of principal or interest thereon, or any premium payable
upon redemption or repayment thereof; (iii) change the Place of Payment or the
currency in which principal or
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any interest is payable; (iv) impair the right to institute suit for the
enforcement of any payment of the principal and any premium and interest, or
adversely affect the right of any repayment at the option of the Holder; (v)
reduce the percentage in principal amount of Debt Securities the consent of
whose Holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults; (vi) reduce the requirements contained in the Indenture for
quorum or voting; or (vii) modify any of the above provisions; provided,
--------
further, that if the Debt Securities of this series are held by the Trust or a
- -------
trustee of the Trust, a supplemental indenture shall not be effective until the
holders of a majority in liquidation preference of Trust Securities shall have
consented to such supplemental indenture; provided, further, that if the consent
of the Holder of each Outstanding Debt Security is required in connection with a
supplemental indenture, such supplemental indenture shall not be effective until
each holder of the Trust Securities shall have consented to such supplemental
indenture. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
affected thereby, on behalf of all of the Holders of the Outstanding Debt
Securities of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default in
the payment of the principal of or premium, if any, or interest on any of the
Debt Securities of such series; provided, however, that if the Debt Securities
-------- -------
of this series are held by the Trust or a trustee of the Trust, a waiver of a
past default or any modification to a waiver of a past default shall not be
effective until the holders of a majority in liquidation preference of Trust
Securities shall have consented to such waiver or modification; provided,
--------
further, that if the consent of the Holder of each Debt Security Outstanding
- -------
is required in connection with such waiver or modification, such waiver or
modification shall not be effective until each holder of the Trust Securities
shall have consented to such waiver or modification. Any such consent or waiver
by the registered Holder of this Debt Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debt Security and of any Debt Security issued
in exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this Debt
Security at the time and place and at the rate and in the money herein
prescribed.
The Company shall have the right at any time during the term of this Debt
Security from time to time to extend the interest payment period of this Debt
Security to up to 20 consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for
this Debt Security herein to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest
17
<PAGE>
Payment Period, the Company may further extend such Extended Interest Payment
Period, provided that such Extended Interest Payment Period together with all
such further extensions thereof shall not exceed 20 consecutive quarters. At the
termination of any such Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and any additional amounts then due, the Company
may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debt Security is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debt Security for
registration of transfer at the office or agency of the Company in
_____________, Delaware accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debt Securities of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Company, the Trustee, any Paying Agent and any Security Registrar
may deem and treat the registered Holder hereof as the absolute owner hereof
(whether or not this Debt Security shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any Paying Agent nor any Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debt Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or the Trustee or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
[**IF A GLOBAL SECURITY -- This Debt Security is exchangeable for Debt
Securities in definitive form only under certain limited circumstances set forth
in the Indenture.] Debt Securities of this series so issued 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
herein and therein set forth. Debt Securities of this series so issued are
exchangeable for a like aggregate principal amount of Debt
18
<PAGE>
Securities of this series of a different authorized denomination, as requested
by the Holder surrendering the same.
All terms used in this Debt Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ARTICLE IX
Original Issue of Notes
Section 9.1 Original Issue of Notes.
Notes in the aggregate principal amount of $______________ may, upon
execution of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes upon Company Order.
Section 9.2 Reports by the Trustee.
Up until and including the Maturity Date, the Trustee shall, in respect of
each Reporting Date, make such reports, and within such time periods, as are
required to be made by the Trustee under the Trust Indenture Act.
ARTICLE X
Limitation on Waivers and Consents
Notwithstanding anything to the contrary contained in Section 513 of the
Indenture, if the Notes are held by the Trust or a trustee of the Trust, a
waiver of a past default or any modification to a waiver of a past default shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities shall have consented to such waiver or modification; provided,
--------
however, that if the consent of the Holder of each Note Outstanding is required
- -------
in connection with such waiver or modification, such waiver or modification
shall not be effective until each holder of the Trust Securities shall have
consented to such waiver or modification.
Notwithstanding anything to the contrary contained in Section 902 of the
Indenture, if the Notes are held by the Trust or a trustee of the Trust, a
supplemental indenture shall not be effective until the holders of a majority in
liquidation preference of Trust Securities shall have consented to such
supplemental indenture; provided, however, that if the consent of the Holder of
each Note Outstanding is required in connection with a supplemental indenture,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.
19
<PAGE>
ARTICLE XI
Miscellaneous
Section 11.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 11.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
Section 11.3 Governing Law.
This First Supplemental Indenture and each Note shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
Section 11.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Notes, but this First Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 11.5 Counterparts.
This First Supplemental Indenture 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 11.6 Third Party Beneficiaries. The Property Trustee, the
trustee under the Preferred Securities Guarantee and the Delaware Trustee are
each a third party beneficiary of, and shall be entitled to enforce and to
exercise all rights and remedies with respect to, the provisions of Article V.
Each of the holders of Preferred Securities is a third party beneficiary of, and
shall be entitled to enforce and to exercise all rights and remedies with
respect to, the provisions of Section 6.2(c).
20
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
RELIASTAR FINANCIAL CORP.
By________________________________________________
Attest:
___________________________
Secretary
______________________________________, not in
its individual capacity but solely as Trustee
By________________________________________________
Attest:
___________________________
Secretary
21
<PAGE>
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the __________ day of ____________________________, 1997, before me
personally came ________________________, to me known, who, being duly sworn,
did depose and say that he resides at Edina Minnesota ; that he is
----------- ------------------
a Senior Vice President, Chief Financial Officer and Treasurer of
-------------------------------------------------------------------
ReliaStar Financial Corp., a corporation described in and which executed the
above instrument; that he knows the seal of said corporation; that it was so
affixed pursuant to the authority of the Board of Directors of said corporation;
and that he signed his name thereto pursuant to like authority.
_____________________________________________
Notary Public
<PAGE>
STATE OF __________________ )
)SS.
COUNTY OF ________________ )
On the _________ day of ___________________________, ________, before
me personally came ___________________________, to me known, who, being duly
sworn, did depose and say that he resides at
____________________________________________; that he is a _________________ of
____________________, a Delaware banking corporation described in and which
executed the above instrument; that he knows the seal of said corporation; that
it was so affixed pursuant to the authority of the Board of Directors of said
corporation; and that he signed his name thereto pursuant to like authority.
_____________________________________________
Notary Public
<PAGE>
Exhibit 4(s)
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
RELIASTAR FINANCING __
Dated as of _______________, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions and Interpretation.................................. 2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application................................ 6
Section 2.2. Lists of Holders of Trust Securities............................ 6
Section 2.3. Reports by Preferred Guarantee Trustee.......................... 6
Section 2.4. Periodic Reports to Preferred Guarantee Trustee................. 6
Section 2.5. Evidence of Compliance with Conditions Precedent................ 7
Section 2.6. Events of Default; Waiver....................................... 7
Section 2.7. Event of Default; Notice........................................ 7
Section 2.8. Conflicting Interests........................................... 7
ARTICLE III
POWER, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of Preferred Guarantee Trustee................ 8
Section 3.2. Certain Rights of Preferred Guarantee Trustee................... 9
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee........... 11
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1. Preferred Guarantee Trustee; Eligibility........................ 12
Section 4.2. Appointment, Removal and Resignation of Preferred Guarantee
Trustee........................................................ 12
ARTICLE V
GUARANTEE
Section 5.1. Guarantee....................................................... 13
Section 5.2. Subordination................................................... 13
Section 5.3. Waiver of Notice and Demand..................................... 13
Section 5.4. Obligations Not Affected........................................ 14
Section 5.5. Rights of Holders............................................... 14
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Section 5.6. Guarantee of Payment............................................ 15
Section 5.7. Subrogation..................................................... 15
Section 5.8. Independent Obligations......................................... 15
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transactions...................................... 16
Section 6.2. Ranking......................................................... 16
ARTICLE VII
TERMINATION
Section 7.1. Termination..................................................... 16
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation..................................................... 17
Section 8.2. Indemnification................................................. 17
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns.......................................... 18
Section 9.2. Amendments...................................................... 18
Section 9.3. Limitation of Liability......................................... 18
Section 9.4. Notices......................................................... 19
Section 9.5. Benefit......................................................... 19
Section 9.6. Governing Law................................................... 20
</TABLE>
-ii-
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT ("Preferred Securities
Guarantee Agreement"), dated as of _______________, 1997 , is executed and
delivered by ReliaStar Financial Corp., a Delaware corporation (the
"Guarantor"), and _______________________, a Delaware banking corporation, as
trustee, for the benefit of the holders, from time to time, of the Preferred
Securities of ReliaStar Financing __, a Delaware statutory business trust (the
"Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of _____________, 1997, among the trustees of the Trust
named therein, the Guarantor, as sponsor and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
on the date hereof $___________ aggregate stated liquidation amount of Preferred
Securities designated the _____% Trust Originated Preferred Securities (the
"Preferred Securities");
WHEREAS, as incentive for such holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee Agreement, to pay to
the holders, from time to time, of Preferred Securities the Guarantee Payments
(as hereinafter defined) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee Agreement") with substantially
identical terms to this Preferred Securities Guarantee Agreement for the benefit
of the holders of the Common Securities (as hereinafter defined) except that if
an Event of Default (as hereinafter defined), has occurred and is continuing,
the rights of holders of the Common Securities to receive guarantee payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of holders, from time to time, of Preferred Securities to receive Guarantee
Payments under this Preferred Securities Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee Agreement for the benefit of the holders, from time to time, of the
Preferred Securities.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS AND INTERPRETATION.
In this Preferred Securities Guarantee Agreement, unless the context
otherwise requires:
(a) capitalized terms used in this Preferred Securities Guarantee Agreement
but not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1.;
(b) a term defined anywhere in this Preferred Securities Guarantee
Agreement has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee Agreement" or
"this Preferred Securities Guarantee Agreement" are to this Preferred Securities
Guarantee Agreement as modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee Agreement to
Articles and Sections are to Articles and Sections of this Preferred Securities
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act (as hereinafter defined) has
the same meaning when used in this Preferred Securities Guarantee Agreement
unless otherwise defined in this Preferred Securities Guarantee Agreement or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Common Securities" means the common securities of the Trust designated
8.20% Trust Originated Common Securities issued on the date hereof.
"Common Securities Guarantee Agreement" has the meaning set forth in the
preamble.
"Corporate Trust Office" means the principal office of the Preferred
Guarantee Trustee at which at any particular time its corporate trust business
shall be administered which office at the date of execution of this Preferred
Securities Guarantee Agreement is
2
<PAGE>
located at _______________________________________________________________,
Attn: ___________________________.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Declaration" has the meaning set forth in the preamble.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person by the Person; or
(b) in any other case, in the name of such Person by one or more Authorized
Officers of that Person.
"Distribution" means a distribution payable to Holders of Trust Securities
in accordance with the terms of the Declaration.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Preferred Securities Guarantee Agreement.
"Guarantee Payments" mean the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Trust: (i) any accrued and unpaid Distributions that are required to
be paid on such Preferred Securities, to the extent the Trust shall have
received a payment of interest or principal on the Notes therefor from the
Guarantor, (ii) the Redemption Price, to the extent the Trust has received a
payment of interest or principal on the Notes from the Guarantor with respect to
any Preferred Securities called for redemption by the Trust, and (iii) the
Liquidation Distribution due upon a voluntary or involuntary dissolution,
winding-up or termination of the Trust (other than in connection with the
distribution of Notes to the Holders in exchange for Preferred Securities as
provided in the Declaration or the redemption of all of the Preferred Securities
upon the maturity or redemption of the Notes).
"Holder" means a Person in whose name a Certificate representing a Trust
Security is registered on the books and records of the Trust, such Person being
a beneficial owner within the meaning of the Delaware Business Trust Act,
provided, that, in determining whether the holders of the requisite percentage
of Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor, or any Affiliate of the
Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate
of the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Preferred
Guarantee Trustee.
"Indenture" means the Indenture dated as of _________________, 1997, among
the Note Issuer and ___________________, as trustee, as supplemented by the
First
3
<PAGE>
Supplemental Indenture dated _________________, 1997, and any indenture
supplemental thereto.
"Liquidation Distribution" means the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Preferred
Securities to the date of payment to the extent the Trust shall have received
payments of interest or principal on the Notes therefor from the Guarantor, or
(b) the amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust.
"List of Holders" has the meaning set forth in Section 2.2.(a).
"Majority in liquidation amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Preferred Securities.
"Note Issuer" means the Guarantor in its capacity as issuer of the Notes.
"Notes" means the series of Notes to be issued by the Note Issuer under the
Indenture and acquired by the Trust.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been compiled with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
4
<PAGE>
"Preferred Guarantee Trustee" means _________________________, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee
Agreement, and thereafter means each such Successor Preferred Guarantee Trustee.
"Preferred Securities" has the meaning set forth in the preamble.
"Redemption Price" means the liquidation amount of $25 per Trust Security
plus all accrued and unpaid Distributions to the date of redemption.
"Responsible Officer" means, when used with respect to the Preferred
Guarantee Trustee, an officer in the Corporate Trust Office of the Preferred
Guarantee Trustee, including the president, any vice-president, any assistant
vice-president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect at
the date as of which this instrument was executed, provided, however, that in
the event the Trust Indenture Act is amended after such date, "Trust Indenture
Act" means to the extent required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Preferred Securities.
5
<PAGE>
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Preferred Securities
Guarantee Agreement limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such duties imposed
by the Trust Indenture Act shall control.
SECTION 2.2. LISTS OF HOLDERS OF TRUST SECURITIES.
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of Preferred Securities ("List of
Holders") as of such date, (i) within 14 days after each record date for payment
of Distributions, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Guarantee Trustee,
provided that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY PREFERRED GUARANTEE TRUSTEE.
Within 60 days after December 31 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO PREFERRED GUARANTEE TRUSTEE.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act, if any, and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
6
<PAGE>
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of the Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of Preferred Securities, notices of all Events of
Default known to the Preferred Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, the Preferred Guarantee
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Preferred Guarantee Trustee shall have
received written notice as provided in Section 9.4., or a Responsible Officer of
the Preferred Guarantee Trustee shall have obtained actual notice, of such Event
of Default.
SECTION 2.8. CONFLICTING INTERESTS.
The Declaration shall be deemed to be specifically described in this
Preferred Securities Guarantee Agreement for the purposes of clause (1) the
first proviso contained in Section 310(b) of the Trust Indenture Act.
7
<PAGE>
ARTICLE III
POWER, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF PREFERRED GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee Agreement shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee Agreement to any Person except a Holder of
Preferred Securities exercising his or her rights pursuant to Section 5.5.(b) or
to a Successor Preferred Guarantee Trustee on acceptance by such Successor
Preferred Guarantee Trustee of its appointment to act as Successor Preferred
Guarantee Trustee. The right, title and interest of the Preferred Guarantee
Trustee shall automatically vest in any Successor Preferred Guarantee Trustee,
and such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee Agreement
for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee Agreement, and no implied covenants shall be
read into this Preferred Securities Guarantee Agreement against the Preferred
Guarantee Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6.), the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee Agreement shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Guarantee Trustee
shall be determined solely by the express provisions of this Preferred
Securities Guarantee Agreement, and the Preferred Guarantee Trustee
shall not
8
<PAGE>
be liable except for the performance of such duties and obligations as
are specifically set forth in this Preferred Securities Guarantee
Agreement, and no implied covenants or obligations shall be read into
this Preferred Securities Guarantee Agreement against the Preferred
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Preferred Guarantee Trustee and
conforming to the requirements of this Preferred Securities Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee
Agreement;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Preferred Guarantee Trustee, or exercising any trust or power conferred
upon the Preferred Guarantee Trustee under this Preferred Securities
Guarantee Agreement; and
(iv) no provision of this Preferred Securities Guarantee
Agreement shall require the Preferred Guarantee Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Preferred Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Preferred Securities
Guarantee Agreement or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF PREFERRED GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1.:
(i) The Preferred Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement,
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instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee Agreement shall be sufficiently evidenced by
a Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee Agreement, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to
any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel,
and the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in accordance with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this Preferred
Securities Guarantee Agreement from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Preferred
Securities Guarantee Agreement at the request or direction of any Holder of
Preferred Securities, unless such Holder shall have provided to the
Preferred Guarantee Trustee such security and indemnity acceptable to the
Preferred Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it
in complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee; provided
that, nothing contained in this Section 3.2.(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it
by this Preferred Securities Guarantee Agreement.
(vii) The Preferred Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture,
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note, other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, and the Preferred Guarantee Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of Preferred Securities, and the
signature of the Preferred Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall
be required to inquire as to the authority of the Preferred Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Preferred Securities Guarantee Agreement, both of which
shall be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee Agreement the Preferred Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (A) may
request instructions from the Holders of Preferred Securities, (B) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected in acting
in accordance with such instructions.
(b) No provision of this Preferred Securities Guarantee Agreement shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Preferred Securities Guarantee Agreement
shall be taken as the statements of the Guarantor, and the Preferred Guarantee
Trustee does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee Agreement.
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ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. PREFERRED GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then, for the purposes of this Section 4.1.(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1.(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2.(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF PREFERRED GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2.(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2.(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor and
the resigning Preferred Guarantee Trustee.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been appointed or until
its removal or
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resignation. The Preferred Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Preferred Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by instrument in writing
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2. within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Preferred Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Preferred Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders of Preferred Securities the Guarantee Payments (without duplication of
amounts theretofore paid by the Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Trust may have or assert.
The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders of
Preferred Securities or by causing the Trust to pay such amounts to the Holders
of Preferred Securities.
SECTION 5.2. SUBORDINATION.
If an event of default under the Indenture has occurred and is continuing,
the rights of holders of the Common Securities to receive payments under the
Common Securities Guarantee Agreement are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments.
SECTION 5.3. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee Agreement and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
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SECTION 5.4. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor under
this Preferred Securities Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sums payable that results from the extension of any interest payment period on
the Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders of Preferred Securities to enforce, assert or exercise any right,
privilege, power or remedy conferred on such Holders pursuant to the terms of
the Preferred Securities, or any action on the part of the Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.4. that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders of Preferred Securities to give
notice to, or obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
SECTION 5.5. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of Preferred Securities
have the right to direct the time, method and place of conducting of any
proceeding for any
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remedy available to the Preferred Guarantee Trustee in respect of this Preferred
Securities Guarantee Agreement or exercising any trust or power conferred upon
the Preferred Guarantee Trustee under this Preferred Securities Guarantee
Agreement.
(b) If the Guarantor fails to make any payments required by the Preferred
Securities Guarantee Agreement, any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee Agreement, without first instituting a legal proceeding
against the Trust, the Preferred Guarantee Trustee or any other Person.
SECTION 5.6. GUARANTEE OF PAYMENT.
This Preferred Securities Guarantee Agreement creates a guarantee of
payment and not of collection.
SECTION 5.7. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Preferred Securities against the Trust in respect of any amounts paid to the
Holders of Preferred Securities by the Guarantor under this Preferred Securities
Guarantee Agreement; provided, however, that the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Preferred Securities Guarantee Agreement, if, at the time of any such payment,
any amounts are due and unpaid under this Preferred Securities Guarantee
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders of Preferred Securities and to pay over such amount to the Holders of
Preferred Securities.
SECTION 5.8. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.4. hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS.
So long as any Preferred Securities remain outstanding, if there shall have
occurred an Event of Default or an event of default under the Declaration, then
(a) the Guarantor shall not declare or pay any dividend on, or make any
distribution with respect to, or redeem, purchase or acquire or make a
liquidation payment with respect to, any of its capital stock and (b) the
Guarantor shall not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Guarantor which rank pari passu with or junior to the Notes,
provided, that, the foregoing restriction in this Section 6.1.(a) shall not
apply to any stock dividends paid by the Guarantor, where the dividend stock is
the same stock as that on which the dividend is being paid.
SECTION 6.2. RANKING.
This Preferred Securities Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor (other than the Common
Securities Guarantee or any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate of
the Guarantor), and (ii) pari passu with the most senior preferred or preference
stock now or hereafter issued by the Guarantor and with any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION.
This Preferred Securities Guarantee Agreement shall terminate upon (i) full
payment of the Redemption Price of all Preferred Securities, (ii) the
distribution of the Notes to the Holders of all Preferred Securities or (iii)
full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Trust. Notwithstanding the foregoing, this Preferred
Securities Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee. Notwithstanding anything
contained herein to the contrary, the obligations of the Guarantor set forth in
Article VIII hereof shall survive termination of this Preferred Securities
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Guarantee Agreement or the earlier resignation or removal of the Preferred
Guarantee Trustee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Preferred Securities
Guarantee Agreement and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Preferred Securities Guarantee Agreement or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
SECTION 8.2. INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Guarantor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage, liability or claim incurred by such Indemnified Person in connection
with this Preferred Securities Guarantee Agreement, including, without
limitation, by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Preferred Securities
Guarantee Agreement and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Preferred Securities Guarantee Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions. The obligation to indemnify
as set forth in this Section 8.2 shall survive the termination of this Preferred
Securities Guarantee Agreement.
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(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of any undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.2.(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Preferred Securities
Guarantee Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of Preferred Securities.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes that do not adversely affect the rights
of Holders of Preferred Securities (in which case no consent of Holders will be
required), this Preferred Securities Guarantee Agreement may only be amended
with the prior approval of the Holders of at least a majority in liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all the outstanding Preferred
Securities. The provisions of Section 12.2 of the Declaration with respect to
meetings of Holders of the Trust Securities apply to the giving of such
approval. The Preferred Guarantee Trustee may, but shall have no obligation to,
execute and deliver any amendment to this Preferred Securities Guarantee
Agreement which affects the Preferred Guarantee Trustee's rights, duties or
immunities hereunder or otherwise.
SECTION 9.3. LIMITATION OF LIABILITY.
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by _______________________, not individually
or personally but solely as the Preferred Guarantee Trustee, in the exercise of
the powers and authority conferred and vested in it, (b) nothing herein
contained shall be construed as creating any liability on
_______________________, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the Guarantor and by any Person claiming by, through or
under the Guarantor, and (c) under no circumstances shall _____________________
be personally liable for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of
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any obligation, representation, warranty or covenant made or undertaken by the
Preferred Guarantee Trustee under this Preferred Securities Guarantee Agreement.
SECTION 9.4. NOTICES.
All notices provided for in this Preferred Securities Guarantee Agreement
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of Preferred
Securities) :
___________________________________
___________________________________
___________________________________
___________________________________
Attn:______________________________
Telecopy: (___) ___-____
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of Preferred Securities):
ReliaStar Financial Corp.
20 Washington Avenue South
Minneapolis, Minnesota 55401
Telecopy Number: (612) 372-5479
(c) If given to any Holder of Preferred Securities, at the address set
forth in the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.5. BENEFIT.
This Preferred Securities Guarantee Agreement is solely for the benefit of
the Holders of Preferred Securities and, subject to Section 3.1.(a), is not
separately transferable from the Preferred Securities.
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SECTION 9.6. GOVERNING LAW.
This Preferred Securities Guarantee Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of New York and all rights and remedies shall be governed by such laws
without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
RELIASTAR FINANCIAL CORP.
By _________________________________________
Name:
Title:
___________________________________,
as Preferred Guarantee Trustee
By _________________________________________
Name:
Title:
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Exhibit 8(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ReliaStar Financial Corp. and subsidiaries on Form S-3 of our reports dated
January 31, 1997, except for Note 14, as to which the date is February 23, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
ReliaStar Financial Corp. and subsidiaries for the year ended December 31, 1996.
Minneapolis, Minnesota
May 7, 1997
<PAGE>
Exhibit 5
May 8, 1997
ReliaStar Financial Corp.
20 Washington Avenue South
Minneapolis, Minnesota 55401
Ladies and Gentlemen:
We have acted as counsel to ReliaStar Financial Corp., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 of the Company and ReliaStar Financing II,
ReliaStar Financing III, ReliaStar Financing IV, and ReliaStar Financing V dated
the date hereof (the "Registration Statement"), for the proposed registration
under the Securities Act of 1933, as amended (the "Securities Act"), of U.S.
$400,000,000 in aggregate initial offering price of the following securities:
(i) unsecured debt securities of the Company consisting of debentures, notes
and/or other unsecured evidences of indebtedness, which may be senior ("Senior
Debt Securities"), senior subordinated ("Senior Subordinated Debt Securities")
or junior subordinated ("Junior Subordinated Debt Securities" and, together with
Senior Subordinated Debt Securities, "Subordinated Debt Securities" and the
Subordinated Debt Securities together with the Senior Debt Securities, "Debt
Securities"); (ii) warrants to purchase Debt Securities ("Debt Warrants"); (iii)
shares of preferred stock, without par value ("Preferred Stock"), of the
Company, interests in which may be represented by depositary shares ("Depositary
Shares"); (iv) warrants to purchase shares of Preferred Stock or Depositary
Shares ("Preferred Stock Warrants"); and (v) warrants to purchase shares of
common stock, without par value ("Common Stock"), of the Company ("Common Stock
Warrants" and, together with Debt Warrants and Preferred Stock Warrants,
"Securities Warrants") (Debt Securities, Preferred Stock, Depositary Shares and
Securities Warrants are sometimes referred to as "Securities"). Securities may
be offered separately or as part of units with other Securities, in series, in
amounts, at prices and on other terms set forth or to be set forth in the
Registration Statement and in the prospectus and one or more supplements to the
prospectus (together, the "Prospectus") constituting a part of the Registration
Statement, and Securities may be convertible into Common Stock or other
Securities.
Senior Debt Securities are to be issued under one or more indentures
in the form filed as Exhibit 4(g) to the Registration Statement, with
appropriate changes and insertions ("Senior Indenture"), to be entered into by
the Company and a trustee or trustees to be named by the Company. Senior
Subordinated Debt Securities are to be issued under one
<PAGE>
________________, 1997
Page 2
or more indentures in the form filed as Exhibit 4(h) to the Registration
Statement, with appropriate changes and insertions ("Senior Subordinated
Indenture"), to be entered into by the Company and a trustee or trustees to be
named by the Company. Junior Subordinated Debt Securities are to be issued under
one or more indentures in the form filed as Exhibit 4(i) to the Registration
Statement, with appropriate changes and insertions ("Junior Subordinated
Indenture," and together with the Senior Subordinated Indenture, the
"Subordinated Indentures"), to be entered into by the Company and a trustee or
trustees to be named by the Company. Each series of Preferred Stock is to be
issued under the Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), of the Company and a certificate of designations ("Certificate
of Designations") to be approved by the Board of Directors of the Company (the
"Board"), or a duly authorized committee thereof, and filed with the Delaware
Secretary of State (the "Secretary of State") in accordance with the Delaware
General Corporation Law (the "Delaware Law"). Depositary Shares are to be issued
under a deposit agreement in the form filed as Exhibit 4(k) to the Registration
Statement, with appropriate changes and insertions ("Deposit Agreement"), to be
entered into by the Company and a depositary or depositaries to be named by the
Company. Securities Warrants are to be issued under warrant agreements in the
forms filed as Exhibits 4(l), 4(m) and 4(n) to the Registration Statement, with
appropriate changes and insertions (respectively, a "Debt Warrant Agreement," a
"Preferred Stock Warrant Agreement" and a "Common Stock Warrant Agreement," and
each a "Warrant Agreement"), to be entered into by the Company and a warrant
agent or agents to be named by the Company. Common Stock issuable in exchange
for or on conversion of any Securities is to be issued under the Certificate of
Incorporation. Certain terms of Securities to be issued by the Company from time
to time will be approved by the Board, or a duly authorized committee thereof,
or a duly authorized officer of the Company, as part of the corporate action
taken and to be taken (the "Corporate Proceedings") in connection with the
issuance of Securities.
We have reviewed such corporate records and other documents relating
to the Securities, including the Registration Statement, and have reviewed such
matters of law as we have deemed necessary for this opinion, and we advise you
that in our opinion:
1. The Company is a corporation duly organized and existing under
the laws of the State of Delaware.
2. Upon the execution and delivery of a Senior Indenture or a
Subordinated Indenture, as the case may be, by the Company and the trustee or
trustees thereunder (the "Trustee"), and, in the case of Debt Warrants, upon
execution and delivery of a Debt Warrant Agreement by the Company and the
warrant agent or agents thereunder (the "Debt Agent"), when Senior Debt
Securities, Subordinated Debt Securities or Debt Warrants, as the case may be,
of a particular series have been duly authorized by the Board, or a duly
authorized committee thereof, or a duly authorized officer of the Company, all
necessary Corporate Proceedings will have been taken to authorize the issuance
and sale of Debt Securities or Debt Warrants of such series, and when Debt
Securities or Debt Warrants of
<PAGE>
________________, 1997
Page 3
such series are issued and sold as contemplated in the Registration Statement,
including a prospectus supplement relating to Debt Securities or Debt Warrants
of such series, and duly executed by proper officers of the Company and duly
authenticated by or on behalf of the Trustee or duly countersigned by or on
behalf of the Debt Agent, as the case may be, such Debt Securities or Debt
Warrants will be legally issued, valid and binding obligations of the Company
entitled to the benefits of the applicable Indenture and, in the case of Debt
Warrants, the Debt Warrant Agreement.
3. Upon designation by the Board, or a duly authorized committee
thereof, of the preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereto, of
shares of Preferred Stock of a particular series, and, thereafter, upon proper
filing under the Delaware Law with the Secretary of State of a Certificate of
Designations relating to Preferred Stock of such series, all necessary Corporate
Proceedings will have been taken to authorize the issuance and sale of shares of
Preferred Stock of such series, and when such shares are issued and sold as
contemplated in the Registration Statement, including a prospectus supplement
relating to Preferred Stock of such series, such shares will be legally and
validly issued, fully paid and nonassessable.
4. Upon the execution and delivery of a Deposit Agreement by the
Company and the depositary or depositaries thereunder (the "Depositary"), when
Depositary Shares of a particular series have been duly authorized by the Board,
or a duly authorized committee thereof, or a duly authorized officer of the
Company, all necessary Corporate Proceedings will have been taken to authorize
the issuance and sale of Depositary Shares of such series, and when Depositary
Shares of such series are issued and sold as contemplated in the Registration
Statement, including a prospectus supplement relating to Depositary Shares of
such series, Depositary Receipts evidencing Depositary Shares of such series
have been duly executed and delivered by or on behalf of the Depositary and, if
required by any securities exchange on which Depositary Shares of such series
may be listed, duly countersigned by or on behalf of a registrar, and shares of
Preferred Stock of the applicable series have been duly deposited with the
Depositary under the Deposit Agreement, such Depositary Shares will be legally
issued, valid and binding obligations of the Company entitled to the benefits of
the Deposit Agreement.
5. Upon the execution and delivery of a Preferred Stock Warrant
Agreement, with respect to Preferred Stock or Depositary Shares, or a Common
Stock Warrant Agreement, with respect to Common Stock, by the Company and the
warrant agent or agents thereunder (the "Stock Agent"), when Preferred Stock
Warrants or Common Stock Warrants, as the case may be, of a particular series
have been duly authorized by the Board, or a duly authorized committee thereof,
or a duly authorized officer of the Company, all necessary Corporate Proceedings
will have been taken to authorize the issue and sale of Warrants of such series,
and when Warrants of such series are issued and sold as contemplated in the
Registration Statement, including a prospectus supplement relating to Warrants
of such series, and duly executed by proper officers of the Company and duly
<PAGE>
________________, 1997
Page 4
countersigned by or on behalf of the Stock Agent, such Warrants will be legally
issued, valid and binding obligations of the Company entitled to the benefits of
the Preferred Stock Warrant Agreement or the Common Stock Warrant Agreement, as
the case may be.
6. If Debt Securities, Preferred Stock or Depositary Shares are
exchangeable for or convertible into shares of Preferred Stock, Depositary
Shares or shares of Common Stock, when such shares of Preferred Stock,
Depositary Shares or shares of Common Stock have been duly issued in exchange
for or upon conversion of such Debt Securities, Preferred Stock or Depositary
Shares, as the case may be, in accordance with the terms of the applicable
Indenture, Certificate of Designations, Deposit Agreement or other instrument
fixing the terms of such exchange or conversion duly authorized by the Board, or
a duly authorized committee thereof, or a duly authorized officer of the
Company, such shares of Preferred Stock or Common Stock, as the case may be,
will be legally issued, fully paid and nonassessable and, in the case of shares
of Common Stock, with Rights to purchase Preferred Stock, as referred to in the
Registration Statement, attached thereto, and such Depositary Shares will be
legally issued, valid and binding obligations of the Company entitled to the
benefits of the Deposit Agreement or such other instrument.
For purposes of the opinions expressed above in paragraphs 2 through
6, we have assumed (i) that the Registration Statement has become effective
under the Securities Act and remains so effective during the offer and sale of
the particular Securities; (ii) that the sales of all Securities are within the
aggregate dollar limitation set forth in the first paragraph hereof; and (iii)
that the terms of any Securities have been duly established so as not to violate
any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental authority having jurisdiction
over the Company. Further, we note that a judgment for money in an action based
on a debt security denominated in a foreign currency, currency unit or composite
currency in a federal or state court in the United States ordinarily would be
enforced in the United States only in United States dollars. The date used to
determine the rate of conversion of the foreign currency, currency unit or
composite currency in which a particular debt security is denominated into
United States dollars will depend upon various factors, including which court
renders the judgment.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm wherever appearing therein,
including the Prospectus.
Very truly yours,
FAEGRE & BENSON LLP
<PAGE>
EXHIBIT 12
<TABLE>
<CAPTION>
Ratios of Earnings to Fixed
Charges and to Combined
Fixed Charges and Preferred
Stock Dividends
(In Millions)
Year Ended December 31
--------------------------------------------------------------------
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
EARNINGS:
Income from Continuing Operations
before income taxes, extraordinary
charges and accounting changes........................ $ 296.4 $ 259.8 $ 166.6 $ 128.6 $ 89.6
Add:
Fixed Charges.......................................... 40.0 30.6 16.1 23.0 28.5
Adjustment for Less than 50% owned Persons............. (2.9) (1.8) 1.2 3.9 1.5
Amortization of previously capitalized interest........ 0.2 0.2 0.2 0.2 0.2
--------- --------- --------- --------- ---------
Adjusted Earnings..................................... $ 333.7 $ 288.8 $ 184.1 $ 155.7 $ 119.8
--------- --------- --------- --------- ---------
FIXED CHARGES:
Interest on indebtedness, expensed or capitalized...... $ 36.4 $ 27.0 $ 13.4 $ 20.3 $ 24.4
Amortization of debt expense and discount or
premium on indebtedness, expensed or capitalized..... 0.0 0.0 0.0 0.1 0.0
Portion of rents deemed representative of interest (a). 3.6 3.6 2.7 2.7 4.0
--------- --------- --------- --------- ---------
Total Fixed Charges.................................... 40.0 30.6 16.1 23.1 28.4
Pre-Tax earnings required to cover Preferred
Stock Dividends...................................... 4.9 9.7 9.8 9.9 9.4
--------- --------- --------- --------- ---------
Combined Fixed Charges and Preferred Stock Dividends... $ 44.9 $ 40.3 $ 25.9 $ 33.0 $ 37.8
--------- --------- --------- --------- ---------
Ratio of Earnings to Fixed Charges..................... 8.34 9.44 11.46 6.76 4.20
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends................ 7.43 7.17 7.12 4.73 3.16
</TABLE>
(a) Generally deemed to be one-third rental expenses.
The Company has guaranteed the repayment of loans, totaling $40.9 million as of
December 31, 1996, of certain real estate joint ventures in which it is a
partner. The amount of interest expense incurred related to these guarantees
would not have a significant effect on the ratios.
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp., a
Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
this 8th day of May, 1997.
/s/ CHRIS D. SCHREIER
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp., a
Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's hand
this 8th day of May, 1997.
/s/ CAROLYN H. BALDWIN
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ WAYNE R. HUNEKE
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ ROBERT C. SALIPANTE
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ STEVEN W. WISHART
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ MICHAEL J. DUBES
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ KENNETH U. KUK
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ RICHARD R. CROWL
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ GLEN D. NELSON
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ JAYE F. DYER
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ DAVID C. COX
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ LUELLA G. GOLDBERG
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ RICHARD L. KNOWLTON
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ JAMES J. RENIER
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ F. CALEB BLODGETT
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ RANDY C. JAMES
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ WILLIAM A. HODDER
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ JAMES J. HOWARD
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ RICHARD M. KOVACEVICH
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ JOHN H. FLITTIE
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ JOHN G. TURNER
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ DAVID A KOCH
-----------------------------------------
<PAGE>
RELIASTAR FINANCIAL CORP.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of ReliaStar Financial Corp.,
a Delaware corporation, does hereby make, constitute and appoint John G. Turner,
John H. Flittie, Wayne R. Huneke and Richard R. Crowl, and each or any one of
them, the undersigned's true and lawful attorneys-in-fact, with power of
substitution, for the undersigned and in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to a Registration Statement or Registration Statements, on Form
S-3 or other applicable form, and all amendments, including post-effective
amendments, thereto, to be filed by said Company with the Securities and
Exchange Commission, Washington, D.C., in connection with the registration under
the Securities Act of 1933, as amended, of Debt Securities, shares of Preferred
Stock, Depositary Shares, Warrants, shares of Common Stock, Preferred Securities
or other securities proposed to be issued or sold by said Company and/or
ReliaStar Financing II, and to file the same with said Commission, granting unto
said attorneys-in-fact, and each of them, full power and authority to do and
perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 8th day of May, 1997.
/s/ RICHARD MICHAEL CONLEY
-----------------------------------------
