As filed with the Securities and
Exchange Commission on September 18, 2006
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Selective Insurance Group,
Inc.
(Exact Name of Registrant as
Specified in Its Charter)
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New Jersey
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22-2168890
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer Identification
No.)
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40 Wantage Avenue,
Branchville, NJ 07890
(973) 948-3000
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
Michael H. Lanza
Senior Vice President, General
Counsel and Corporate Secretary
Selective Insurance Group,
Inc.
40 Wantage Avenue
Branchville, NJ 07890
(973) 948-3000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With a copy to:
Richard B. Aftanas
Skadden, Arps, Slate,
Meagher & Flom LLP
Four Times Square
New York, NY 10036
(212) 735-3000
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this registration statement as determined by the
Registrant
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
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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.
þ
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
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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.
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If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this form is a post-effective amendment to a registration to
a registration statement filed pursuant to General Instruction
I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following
box.
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CALCULATION OF REGISTRATION
FEE
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Proposed Maximum
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Title of Each Class of Securities
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Amount to be
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Proposed Maximum
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Aggregate Offering
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Amount of
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to be Registered
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Registered
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Offering Price Per Unit
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Price
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Registration Fee(2)
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Common Stock, $2.00 par value,
and the associated preferred share purchase rights (the
Common Stock)(1)
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Preferred Stock
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Debt Securities
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Warrants
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Stock Purchase Contracts
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Stock Purchase Units(3)
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(1)
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The preferred share purchase
rights, which are attached to the shares of the common stock
being registered hereunder, will be issued for no additional
consideration.
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(2)
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An indeterminate aggregate initial
offering price or number of the securities of each identified
class is being registered as may from time to time be offered at
indeterminate prices, along with an indeterminate number of
securities that may be issued upon exercise, settlement,
exchange or conversion of securities offered hereunder. Separate
consideration may or may not be received for securities that are
issuable upon exercise, settlement, conversion or exchange of
other securities or that are issued in units with other
securities registered hereunder. In accordance with
Rules 456(b) and 457(r), the Registrant is deferring
payment of all of the registration fee.
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(3)
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Each Stock Purchase Unit will
consist of (a) a Stock Purchase Contract, under which the
holder, upon settlement, will purchase an indeterminate number
of shares of Common Stock and (b) either a beneficial
interest in Debt Securities, Preferred Stock or debt obligations
of third parties, including U.S. Treasury securities,
purchased with the proceeds from the sale of the Stock Purchase
Units. Each beneficial interest will be pledged to secure the
obligation of the holder to purchase the Common Stock. No
separate consideration will be received for the Stock Purchase
Contracts or the related beneficial interest.
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PROSPECTUS
Common Stock, Preferred Stock,
Debt Securities, Warrants,
Stock Purchase Contracts and
Stock Purchase Units
of Selective Insurance Group,
Inc.
From time to time, we may offer and sell:
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common stock,
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preferred stock,
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debt securities,
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warrants,
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stock purchase contracts, and
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stock purchase units.
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We will file prospectus supplements and may provide other
offering materials that furnish specific terms of the securities
to be offered under this prospectus. The terms of the securities
will include the initial offering price, aggregate amount of the
offering, listing on any securities exchange or quotation
system, investment considerations and the agents, dealers or
underwriters, if any, to be used in connection with the sale of
the securities. A prospectus supplement may also add, change or
update information contained in this prospectus. You should read
this prospectus and any applicable prospectus supplement or
other offering materials carefully before you invest.
You should carefully consider the risks of an investment in
our securities. Risk Factors begin on page 2.
Selectives common stock is listed on the NASDAQ Global
Select Market under the trading symbol SIGI.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities, or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is September 18, 2006.
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission using a
shelf registration process. Under the shelf process,
we may sell any combination of the securities described in this
prospectus in one or more offerings. This prospectus provides
you with a general description of the securities we may offer.
Each time we sell securities we will provide a prospectus
supplement and may provide other offering materials that will
contain specific information about the terms of that offering.
The prospectus supplement or other offering materials may also
add, update or change information contained in this prospectus.
You should read both this prospectus and any prospectus
supplement or other offering materials, together with the
additional information described under the heading Where
You Can Find More Information.
This prospectus and any accompanying prospectus supplement or
other offering materials do not contain all of the information
included in the registration statement as permitted by the rules
and regulations of the SEC. For further information, we refer
you to the registration statement on
Form S-3,
including its exhibits. We are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(Securities Exchange Act), and, therefore, file
reports and other information with the Securities and Exchange
Commission. Our file number with the Securities and Exchange
Commission is
000-08641.
Statements contained in this prospectus and any accompanying
prospectus supplement or other offering materials about the
provisions or contents of any agreement or other document are
only summaries. If SEC rules require that any agreement or
document be filed as an exhibit to the registration statement,
you should refer to that agreement or document for its complete
contents. You should not assume that the information in this
prospectus, any prospectus supplement or any other offering
materials is accurate as of any date other than the date on the
front of each document. Our business, financial condition and
results of operations may have changed since then.
In this prospectus, we use the terms Selective, the
Company, we, us and
our to refer to Selective Insurance Group, Inc.
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SUMMARY
This summary highlights selected information from this
prospectus and may not contain all of the information that is
important to you. You should read all of the information in this
prospectus along with the other information and financial
statements we refer you to in the section Where You Can
Find More Information appearing at the end of this
document.
Selective
Insurance Group, Inc.
Selective Insurance Group, Inc. offers property and casualty
insurance products and diversified insurance products through
its various subsidiaries.
Selective classifies its businesses into three operating
segments:
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Insurance Operations, which write commercial lines and personal
lines property and casualty insurance through independent
insurance agents, mainly in 20 states in the Eastern and
Midwestern regions of the United States;
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Investments; and
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Diversified Insurance Services, which provide human resource
administration outsourcing products and federal flood insurance
administrative products and services.
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Selective conducts its insurance operations, manages its
investments and administers federal flood insurance products and
services through one or more of the following subsidiaries:
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Selective Insurance Company of America;
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Selective Way Insurance Company;
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Selective Auto Insurance Company of New Jersey;
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Selective Insurance Company of the Southeast;
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Selective Insurance Company of South Carolina;
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Selective Insurance Company of New York; and
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Selective Insurance Company of New England.
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Selective was incorporated in New Jersey in 1977 to acquire all
of the shares of Selective Insurance Company of America,
formerly named Selected Risks Insurance Company.
Because Selective is a holding company, Selective relies on its
subsidiaries for cash to pay its obligations and dividends to
the Companys stockholders. State insurance laws and
regulations, as administered by state insurance departments,
restrict how much money its insurance subsidiaries may
distribute to the Company.
Selectives principal executive offices are located at 40
Wantage Avenue, Branchville, New Jersey 07890 and
Selectives telephone number is
(973) 948-3000.
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USE OF
PROCEEDS
Unless otherwise indicated in the applicable prospectus
supplement or other offering materials, we will use the net
proceeds from the sale of securities for general corporate
purposes.
RISK
FACTORS
Certain risk factors exist that can have a significant impact on
Selectives business, results of operations, and financial
condition. The impact of these risk factors could also impact
certain actions that Selective takes as part of its long-term
capital strategy including, but not limited to, contributing
capital to subsidiaries in its insurance operations and
diversified insurance services segments, issuing additional debt
and/or
equity securities, repurchasing shares of the Companys
common stock, or increasing stockholders dividends.
The following list of risk factors is not exhaustive and others
may exist. Selective operates in a continually changing business
environment, and new risk factors emerge from time to time.
Consequently, Selective can neither predict such new risk
factors nor assess the impact, if any, they might have on its
business in the future.
The
property and casualty insurance industry is cyclical.
Historically, the results of the property and casualty insurance
industry have experienced significant fluctuations due to high
levels of competition, economic conditions, interest rates, and
other factors. During 2006, commercial lines premium pricing,
excluding exposure, has been down slightly compared to 2005 when
pricing was flat. Commercial lines premium pricing increased
from 2001 to 2004 after having declined for several years prior.
The industrys profitability also is affected by
unpredictable developments, including:
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Natural and man-made disasters;
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Fluctuations in interest rates and other changes in the
investment environment that affect investment returns;
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Inflationary pressures (medical and economic) that affect the
size of losses;
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Judicial decisions that affect insurers liabilities;
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Pricing and availability of reinsurance in the
marketplace; and
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Weather-related impacts, including the effects of global warming
trends.
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Selective
may be adversely affected by catastrophes and weather-related
events.
Results of property and casualty insurers are subject to weather
and other conditions. While one year may be relatively free of
major weather or other disasters, another year may have numerous
such events causing results to be materially worse than other
years. Selectives insurance subsidiaries have experienced
catastrophe losses and we expect them to experience such losses
in the future.
Various natural and man-made events can cause catastrophes,
including, but not limited to hurricanes, tornadoes, windstorms,
earthquakes, hail, terrorism, explosions, severe winter weather,
and fires. The frequency and severity of these catastrophes are
inherently unpredictable. The extent of losses from a
catastrophe is determined by the severity of the event and the
total amount of insured exposures in the area affected by the
event. Although catastrophes can cause losses in a variety of
property and casualty lines, most of the catastrophe-related
claims of Selectives insurance subsidiaries historically
have been related to commercial property and homeowners
coverages. Selectives property and casualty insurance
business is concentrated geographically in the Eastern and
Midwestern regions of the United States. As of June 30,
2006, the State of New Jersey accounted for approximately 33% of
the Companys total net premiums written.
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Selectives insurance subsidiaries seek to reduce their
exposure to catastrophe losses through the purchase of
catastrophe reinsurance. Reinsurance, however, may prove
inadequate if:
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The modeling software used to analyze the insurance
subsidiaries risk proves inadequate; or
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A major catastrophic loss exceeds the reinsurance limit or the
reinsurers financial capacity; or
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The frequency of catastrophe losses result in Selective lacking
reinsurance cover after having used its available reinstatements
under one or more of its reinsurance treaties.
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Acts of
terrorism may not be covered by, or may exceed, reinsurance
limits.
On November 26, 2002, the Terrorism Risk Insurance Act of
2002 (TRIA) was signed into law. TRIA was amended in
December 2005 to be in effect through December 31, 2007.
TRIA requires sharing the risk of future losses from terrorism
between private insurers and the federal government, and is
applicable to almost all commercial lines of insurance.
Insurance companies with direct commercial insurance exposure in
the United States are required to participate in this program.
TRIA rescinded all previously approved exclusions for terrorism.
Policyholders for non-workers compensation policies have the
option to accept or decline the terrorism coverage Selective
offers in its policies, or negotiate other terms. In 2005,
approximately 90% of Selectives commercial non-workers
compensation policyholders purchased terrorism coverage. The
terrorism coverage is mandatory for all workers compensation
primary policies.
In addition, ten of the twenty primary states in which
Selectives insurance subsidiaries write commercial
property coverage mandate the coverage of fire following an act
of terrorism. These provisions apply to new policies written
after the enactment of TRIA. A terrorism act must be certified
by the Secretary of Treasury in order to be covered by TRIA.
TRIA limits the certified losses to international
terrorism defined as an act committed on behalf of any
foreign person or foreign interest in which the damage from the
event is in excess of $50 million in 2006 and
$100 million in 2007, and the event was not committed in
the course of a war declared by the United States. Each
participating insurance company will be responsible for paying
out a certain amount in claims (a deductible) before federal
assistance becomes available. This deductible, which is equal to
$160 million for Selective in 2006, is based on a
percentage of commercial lines direct earned premiums for lines
subject to TRIA from the prior calendar year. For losses above
an insurers deductible, the federal government will cover
90%, while the insurer contributes 10%.
Although the provisions of TRIA will serve to mitigate
Selectives exposure in the event of a large-scale
terrorist attack, the Companys deductible is substantial.
In addition, it is uncertain whether TRIA will be extended past
its current termination date of December 2007 and, therefore, it
may not be a permanent solution. Selective continues to monitor
concentrations of risk and has purchased a separate terrorism
treaty to supplement its protection to this highly unknown
exposure.
Selectives
reserves may not be adequate to cover actual losses and
expenses.
Selective is required to maintain loss reserves for its
estimated liability for losses and loss expenses associated with
reported and unreported insurance claims for each accounting
period. From time to time, Selective adjusts reserves and, if
the reserves are inadequate, the Company will be required to
increase reserves. An increase in reserves: (1) reduces net
income and stockholders equity for the period in which the
deficiency in reserves is identified, and (2) could have a
material adverse effect on Selectives results of
operations, liquidity, financial condition and financial
strength, and debt ratings. Selectives estimates of
reserve amounts are based on facts and circumstances of which we
are aware, including our expectations of the ultimate settlement
and claim administration expenses, predictions of future events,
trends in claims severity and frequency, and other subjective
factors. There is no method for precisely estimating the
Companys ultimate liability for settlement of claims.
Selective regularly reviews its reserving techniques and its
overall amount of reserves. Selective also reviews:
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Information regarding each claim for losses;
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The Companys loss history and the industrys loss
history;
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Legislative enactments, judicial decisions and legal
developments regarding damages;
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Changes in political attitudes; and
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Trends in general economic conditions, including inflation.
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Selective cannot be certain that the reserves it establishes are
adequate or will be adequate in the future.
Selective
is heavily regulated in the states in which it
operates.
Selective is subject to extensive supervision and regulation in
the states in which its insurance and human resources
administration outsourcing subsidiaries transact business. The
primary purpose of insurance regulation is to protect individual
policyholders and not shareholders or other investors.
Selectives business can be adversely affected by
regulations affecting property and casualty insurance companies.
For example, laws and regulations can lead to mandated
reductions in rates to levels that Selective does not believe
are adequate for the risks it insures. Other laws and
regulations limit the ability of Selectives insurance
subsidiaries to cancel or refuse to renew policies and require
them to offer coverage to all consumers. Changes in laws and
regulations, or their interpretations, pertaining to insurance
may also have an impact on Selectives business.
Selectives concentration of business may expose the
Company to increased risks of regulatory matters in the states
in which its insurance subsidiaries write insurance that are
greater than the risks of having business in a greater number of
geographic markets.
Although the federal government does not directly regulate the
insurance industry, federal initiatives, from time to time, can
also impact the insurance industry. Proposals intended to
control the cost and availability of healthcare services have
been debated in the U.S. Congress and state legislatures.
Although Selectives insurance subsidiaries neither write
health insurance nor assume any healthcare risk, rules affecting
healthcare services can affect workers compensation, commercial
and personal automobile, liability, and other insurance that
they do write. The Company cannot determine whether, or in what
form, healthcare reform legislation may be adopted by the
U.S. Congress or any state legislature. Selective also
cannot determine the nature and effect, if any, that the
adoption of healthcare legislation or regulations, or changing
interpretations, at the federal or state level would have on the
Company.
Examples of insurance regulatory risks include:
Automobile
Insurance Regulation
In 1998, New Jersey instituted an Urban Enterprise Zone
(UEZ) Program, which requires New Jersey auto
insurers to have a market share in certain urban territories
that is in proportion to their statewide market share. Due to
mandated urban rate caps, the premiums on these UEZ policies are
typically insufficient to cover losses. Although the law that
imposed these urban rate caps was repealed in 1998, the caps
continue to be enforced by the New Jersey Department of Banking
and Insurance (DOBI).
From time to time, legislative proposals are passed and judicial
decisions are rendered related to automobile insurance
regulation, which could adversely affect Selectives
results of operation. For example, in 2005 the New Jersey
Supreme Courts decision eliminated the application of the
serious life impact standard to personal automobile bodily
injury liability cases under the verbal tort threshold of New
Jerseys Automobile Insurance Cost Reduction Act. This now
allows claimants to file lawsuits for non-economic damages
without proving that the injuries sustained had a serious impact
on their life.
Workers
Compensation Insurance Regulation
Because certain of Selectives insurance subsidiaries
voluntarily write workers compensation insurance, such
subsidiaries are required by state law to support the
involuntary market. Insurance companies that underwrite
voluntary workers compensation insurance can either directly
write involuntary coverage, which is assigned by state
regulatory authorities, or participate in a sharing arrangement,
where the business is written by a servicing carrier and the
profits or losses of that serviced business are shared among the
participating
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insurers. Selectives insurance subsidiaries that write
workers compensation insurance currently participate through a
sharing arrangement in all states, except New Jersey, where
certain of Selectives insurance subsidiaries currently
write involuntary coverage directly. Historically, workers
compensation business has been unprofitable whether written
directly or handled through a sharing arrangement. Additionally,
Selectives insurance subsidiaries that write workers
compensation insurance are required to provide workers
compensation benefits for losses arising from acts of terrorism
under their workers compensation policies. The impact of any
terrorist act is unpredictable, and the ultimate impact on
Selective will depend upon the nature, extent, location and
timing of such an act. Any such impact on Selective could be
material.
Homeowners
Insurance Regulation
Selective is subject to regulatory provisions that are designed
to address potential availability
and/or
affordability problems in the homeowners property insurance
marketplace. Involuntary market mechanisms, such as the New
Jersey Insurance Underwriting Association (New Jersey FAIR
Plan), generally result in assessments to the Company. The
New Jersey FAIR Plan writes fire and extended coverage on
homeowners for those individuals unable to secure insurance
elsewhere. Insurance companies that voluntarily write homeowners
insurance in New Jersey are assessed a portion of any deficit
from the New Jersey FAIR Plan based on their share of the
voluntary market. Similar involuntary plans exist in most other
states where Selectives insurance subsidiaries operate.
Flood
Insurance Regulation
The Federal Governments National Flood Insurance Program
(NFIP), currently covers flooding caused by storm
surge where water is pushed toward the shore by the force of the
winds swirling around a storm. If this federal program is
modified in an unfavorable manner whereby flooding related to
storm surge is no longer covered or is required to be covered by
homeowners policies, such modification could have a material
adverse effect on Selectives flood
and/or
homeowners results.
Selective
may be adversely impacted by a change in its ratings.
Insurance companies are subject to financial strength ratings
produced by external rating agencies, based upon factors
relevant to policyholders. Ratings are not recommendations to
buy, hold, or sell any of Selectives securities. Higher
ratings generally indicate financial stability and a strong
ability to pay claims.
Selective
depends on independent insurance agents and other third party
service providers.
Selective markets and sells its insurance products through
independent, non-exclusive insurance agencies and brokers.
Agencies and brokers are not obligated to promote its insurance
products, and they may also sell the insurance products of the
Companys competitors. As a result, Selectives
business depends in part on the marketing and sales efforts of
these agencies and brokers. As Selective diversifies and expands
its business geographically, the Company may need to expand its
network of agencies and brokers to successfully market its
products. If these agencies and brokers fail to market
Selectives products successfully, Selectives
business may be adversely impacted. Also, independent agents may
decide to sell their businesses to banks, other insurance
agencies, or other businesses. Agents with one of
Selectives appointments may decide to buy other agents.
Changes in ownership of agencies or expansion of agencies
through acquisition could adversely affect an agencys
ability to control growth and profitability, thereby adversely
affecting Selectives business.
In addition to independent insurance agents, Selective also
relies on third party service providers to conduct a portion of
its premium audits, loss control services and claims adjusting
services. Selectives human resources outsourcing business
relies on third party service providers for products such as
health coverage, flexible spending accounts, and 401(k) savings
plans. If these third party service providers fail to perform
their respective services
and/or
fail
to provide their products successfully
and/or
accurately, Selectives business may be adversely impacted.
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Selectives
ability to reduce its exposure to risks depends on the
availability and cost of reinsurance.
Selective transfers its risk exposure to other insurance and
reinsurance companies through reinsurance arrangements. Through
these arrangements, another insurer assumes a specified portion
of the Companys losses and loss adjustment expenses in
exchange for a specified portion of the insurance policy
premiums. The availability, amount, and cost of reinsurance
depend on market conditions, which may vary significantly. Any
decrease in the amount of Selectives reinsurance will
increase its risk of loss. Selective also faces credit risk with
respect to reinsurance. The inability of any of the
Companys reinsurers to meet their financial obligations
could materially and adversely affect our operations, as we
remain primarily liable to our customers under the policies that
we have reinsured.
Selective
faces significant competition from other regional and national
insurance companies, agents and from self-insurance.
Selective competes with both regional and national property and
casualty insurance companies, including those that do not use
independent agents and write directly with insureds. Many of
these competitors are larger than Selective and have greater
financial, technical, and operating resources. Because Selective
sells its coverages through independent insurance agents who
also are agents of its competitors, Selective faces competition
within each of its appointed independent insurance agencies.
The property and casualty insurance industry is highly
competitive on the basis of both price and service. If
Selectives competitors price their products more
aggressively, the Companys ability to grow or renew its
business as well as its profitability may be adversely impacted.
There are many companies competing for the same insurance
customers in the geographic areas in which Selective operates.
The Internet has also emerged as a significant source of new
competition, both from existing competitors and from new
competitors.
Selective also faces competition, primarily in the commercial
insurance market, from entities that self-insure their own
risks. Many of Selectives customers and potential
customers are examining the benefits and risks of self-insuring
as an alternative to traditional insurance.
A number of new, proposed, or potential legislative or industry
developments could further increase competition in the property
and casualty insurance industry. These developments include:
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The Gramm-Leach-Bliley Act, which could result in increased
competition from new entrants to the insurance market, including
banks and other financial service companies;
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Programs in which state-sponsored entities provide property
insurance in catastrophe-prone areas or other alternative market
types of coverage; and
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Changing practices caused by the Internet, which has led to
greater competition in the insurance business and, in some
cases, greater expectations for customer service.
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New competition from these developments could cause the supply
or demand for insurance to change, which could adversely affect
Selectives results of operations and financial condition.
Selective
is a holding company, and its subsidiaries may have a limited
ability to declare dividends, and thus may not have access to
the cash that is needed to meet its cash needs.
Substantially all of Selectives operations are conducted
through its subsidiaries. Restrictions on the ability of the
Companys subsidiaries, particularly the insurance
subsidiaries, to pay dividends or make other cash payments to
Selective may materially affect its ability to pay principal and
interest on its indebtedness and dividends on its common stock.
Under the terms of Selectives debt agreements and
financial solvency laws affecting insurers, the Companys
subsidiaries are permitted to incur indebtedness up to certain
levels that may restrict or prohibit the making of
distributions, the payment of dividends, or the making of loans
by the subsidiaries to Selective. The Company cannot assure that
the agreements governing the current and future indebtedness of
its
6
subsidiaries will permit such subsidiaries to provide Selective
with sufficient dividends, distributions, or loans to fund its
cash needs. Sources of funds for the insurance subsidiaries
primarily consist of premiums, investment income, and proceeds
from sales and redemption of investments. Such funds are applied
primarily to payment of claims, insurance operating expenses,
income taxes and the purchase of investments, as well as
dividends and other payments.
Selectives insurance subsidiaries may declare and pay
dividends to Selective only if they are permitted to do so under
the insurance regulations of their respective state of domicile.
All of the states in which Selectives insurance
subsidiaries are domiciled regulate the payment of dividends.
Some states, including New Jersey, North Carolina, and South
Carolina, require that Selective give notice to the relevant
state insurance commissioner prior to its insurance subsidiaries
declaring any dividends and distributions payable to Selective.
During the notice period, the state insurance commissioner may
disallow all or part of the proposed dividend upon determination
that: (1) the insurers surplus is not reasonable in
relation to its liabilities and adequate to its financial needs
and those of the policyholders, or (2) in the case of New
Jersey, the insurer is otherwise in a hazardous financial
condition. In addition, insurance regulators may block dividends
or other payments to affiliates that would otherwise be
permitted without prior approval upon determination that,
because of the financial condition of the insurance subsidiary
or otherwise, payment of a dividend or any other payment to an
affiliate would be detrimental to an insurance subsidiarys
policyholders or creditors. Selectives subsidiary,
Selective HR Solutions, Inc. (collectively with its
subsidiaries, SHRS), may also declare and pay
dividends. Potential dividends are restricted only by the
operating needs of SHRS.
Class
action litigation could affect Selectives business
practices and financial results.
Selectives industries have been the target of class action
litigation in areas including the following:
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After-market crash parts;
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Urban homeowner underwriting practices;
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Health maintenance organization practices; and
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Discounting and payment of personal injury protection claims.
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A change
in Selectives market share in New Jersey could adversely
impact the results in its private passenger automobile
business.
New Jersey insurance regulations require New Jersey auto
insurers to involuntarily write private passenger automobile
insurance for individuals who are unable to obtain insurance in
the voluntary market. These policies are priced according to a
separate rating scheme that is established by the assigned risk
plan and subject to approval by DOBI. The amount of involuntary
insurance an insurer must write in New Jersey depends on the
insurers statewide market share the greater
the market share the more involuntary coverage the insurer is
required to write. The underwriting of involuntary personal
automobile insurance in New Jersey has been historically
unprofitable.
Selective
depends on key personnel.
To a large extent, the success of Selectives businesses is
dependent on its ability to attract and retain key employees, in
particular its senior officers, key management, sales,
information systems, underwriting, claims, human resources
outsourcing, and corporate personnel. Competition to attract and
retain key personnel is intense. While Selective has employment
agreements with a number of key managers, the Company generally
does not have employment contracts with its employees and cannot
ensure that it will be able to attract and retain key personnel.
7
Selectives
investments support its operations and provide a significant
portion of its revenues and earnings.
Like many other property and casualty insurance companies,
Selective depends on income from its investment portfolio for a
significant portion of its revenues and earnings. Any
significant decline in the Companys investment income as a
result of falling interest rates, decreased dividend payment
rates, or general market conditions would have an adverse effect
on its results. Fluctuations in interest rates cause inverse
fluctuations in the market value of the Companys debt
portfolio. Any significant decline in the market value of its
investments, excluding its
held-to-maturity
investments, would reduce the Companys stockholders
equity and its policyholders surplus, which could impact
the Companys ability to write additional premiums. In
addition, Selectives notes payable are subject to certain
debt-to-capitalization
restrictions, which could also be impacted by a significant
decline in investment values.
Selective
faces risks as a servicing carrier in the Write-Your-Own
program, of the United States governments NFIP
Program.
Flood insurance is offered through the NFIP, which is covered by
the Federal Emergency Management Agency, under the
U.S. Department of Homeland Security. During 2005, the
destruction caused by Hurricanes Katrina and Rita stressed the
NFIP with flood losses in excess of $20 billion. Selective
anticipates that given such losses, the present and future of
the NFIP will be critically evaluated with a focus on easing the
costs of the program. If this federal program is modified in a
manner unfavorable to the Company, it could have a material
adverse effect on its flood business.
Selective
employs anti-takeover measures that may discourage potential
acquirors and could adversely affect the value of its common
stock.
Selective owns all of the shares of stock of its insurance
subsidiaries domiciled in the states of New Jersey, New York,
North Carolina, South Carolina, and Maine. State insurance laws
require prior approval by state insurance departments of any
acquisition or control of a domestic insurance company or of any
company that controls a domestic insurance company. Any purchase
of 10% or more of Selectives outstanding common stock
would require prior action by all or some of the insurance
commissioners of these states.
Other factors also may discourage, delay or prevent a change of
control of Selective, including among others provisions, in the
Companys certificate of incorporation, as amended,
relating to:
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Supermajority voting and fair price for the Companys
business combinations;
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Staggered terms for the Companys directors;
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Supermajority voting requirements to amend the foregoing
provisions;
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The Companys stockholder rights plan;
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Guaranteed payments that must be made to the Companys
officers upon a change of control; and
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The ability of the Companys board of directors to issue
blank check preferred stock.
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The New Jersey Shareholders Protection Act provides that
Selective, as a New Jersey corporation, may not engage in
business combinations specified in the statute with a
shareholder having indirect or direct beneficial ownership of
10% or more of the voting power of the Companys
outstanding stock (an interested shareholder) for a period of
five years following the date on which the shareholder became an
interested shareholder, unless the business combination is
approved by the board of directors of the corporation before the
date the shareholder became an interested shareholder. These
provisions also could have the effect of depriving Selective
stockholders of an opportunity to receive a premium over the
prevailing market price if a hostile takeover were attempted and
may adversely affect the value of the Companys common
stock.
8
Selective
faces risks from technology-related failures.
Selectives businesses are increasingly dependent on
computer and Internet-enabled technology. The Companys
inability to anticipate or manage problems with technology
associated with scalability, security, functionality or
reliability could adversely affect its ability to write business
and service accounts, and could adversely impact its results of
operations and financial conditions.
Selective
faces risks in the human resources outsourcing
business.
The operations of SHRS are affected by numerous federal and
state laws and regulations relating to employment matters,
benefits plans and taxes. In performing services for its
clients, SHRS assumes some obligations of an employer under
these laws and regulations. Regulation in the human resources
outsourcing business is constantly evolving, which could result
in the modification of laws and regulations from time to time.
Selective is unable to predict what additional government
initiatives, if any, affecting SHRSs business may be
promulgated in the future. Consequently, the Company is also
unable to predict whether SHRS will be able to adapt to new or
modified regulatory requirements or obtain necessary licenses
and government approvals.
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DESCRIPTION
OF CAPITAL STOCK
General
The authorized capital stock of Selective consists of
180,000,000 shares of common stock, $2.00 par value,
and 5,000,000 shares of preferred stock, without par value.
As of June 30, 2006, there were issued and outstanding
29,172,974 shares of common stock. Selective had no
preferred stock issued and outstanding.
The following is a description of the material terms of
Selectives capital stock:
Common
Stock
All shares of Selectives common stock have equal rights.
The holders of shares of Selectives common stock, subject
to the preferential rights of the holders of any shares of the
Companys preferred stock, are entitled to dividends when
and as declared by the Board. The holders of Selectives
common stock have one vote per share on all matters submitted to
a vote of its stockholders and the right to its net assets in
liquidation after payment of any amounts due to creditors and
any amounts due to the holders of the Companys preferred
stock. Holders of shares of Selectives common stock are
not entitled as a matter of right to any preemptive or
subscription rights and are not entitled to cumulative voting
for directors. All outstanding shares of Selectives common
stock are fully paid and nonassessable.
Selectives By-laws provide that the annual meeting of
stockholders shall be held on the first Friday in May of each
year at Selective Insurance Group, Inc.s principal office
or at such other time, date and place as is designated by the
Board. A written notice of meeting must be given to each
stockholder at least ten days before the meeting.
The transfer agent and registrar for Selectives common
stock is Wells Fargo Shareowner Services, P.O. Box 64854,
St. Paul, Minnesota
55164-0854.
Preferred
Stock
Under Selectives certificate of incorporation, the Company
is authorized to issue up to 5,000,000 shares of preferred
stock in one or more series with the designations and the
relative voting, dividend, liquidation, conversion, redemption
and other rights and preferences fixed by the Board. The Board
can issue preferred stock without any approval by
Selectives stockholders.
On November 3, 1989, the Board created a series of
preferred stock designated as Series A Junior Preferred
Stock. Selective has reserved 300,000 shares of
Series A Junior Preferred Stock for issuance under its
stockholder rights plan, which is described below.
Stockholder
Rights Plan
Selective has a stockholder rights plan. Under its stockholder
rights plan, each stockholder has one right for each share of
the Companys common stock it holds. Each right entitles
its holder to purchase from Selective one two-hundredth of a
share of Series A Junior Preferred Stock at a purchase
price of $80.00. Selective has the authority to adjust the
rights to prevent dilution of the interests represented by each
right. The rights agreement between Selective and Wells Fargo
Bank, National Association, successor to First Chicago Trust
Company of New York, as rights agent, describes the terms of the
rights.
Each outstanding share of Series A Junior Preferred Stock
will be entitled to an aggregate preferential quarterly dividend
of 100 times the dividend declared on a share of
Selectives common stock and an aggregate preferential
liquidation payment of 100 times the payment made for a share of
its common stock. Each outstanding share of Series A Junior
Preferred Stock will have one vote, and each one two-hundredths
of a share will have one two-hundredth of a vote, voting
together with outstanding shares of common stock. In the event
of a merger or other transaction in which shares of common stock
are exchanged, each share of Series A Junior Preferred
Stock will receive 100 times the amount received for each
outstanding share of common stock.
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The rights are attached to all outstanding shares of
Selectives common stock and trade with its common stock
until they become exercisable. Selective will not distribute
separate rights certificates. The rights will separate from the
Companys common stock and a distribution date will occur
upon the earlier of:
(1) 10 days following the date of any public
announcement that a person or group of affiliated or associated
persons has acquired beneficial ownership of 15% or more of the
outstanding shares of Selectives common stock, or
(2) 10 business days (or such later time as may be
determined by action of the Board) following the commencement or
announcement of a tender offer or exchange offer that would
result in a person or group becoming the beneficial owner of 15%
or more of the outstanding shares of Selectives common
stock.
Until the distribution date or earlier redemption, exchange or
expiration of the rights:
(1) The rights will be evidenced by the common stock
certificates and will be transferred with and only with those
common stock certificates,
(2) New common stock certificates will contain a notation
incorporating Selectives rights agreement by
reference, and
(3) The surrender for transfer of any certificates for
common stock will also constitute the transfer of the rights
associated with the common stock represented by those
certificates.
The rights are not exercisable until the distribution date and
will expire at the close of business on February 2, 2009
unless Selective redeems or exchanges them first as described
below.
As soon as practicable after the distribution date, Selective
will mail right certificates to holders of record of common
stock as of the close of business on the distribution date.
Thereafter, the separate right certificates alone will represent
the rights. Except as otherwise determined by the Board,
Selective will issue rights only with shares of its common stock
issued before the distribution date.
If any person becomes the beneficial owner of 15% or more of the
outstanding shares of Selectives common stock, the Company
will provide each right holder, other than the beneficial owner
of 15% or more of the outstanding shares of Selectives
common stock, with the right to receive upon exercise of the
right that number of shares of common stock having a market
value of two times the exercise price of the right. In the event
that, at any time following the stock acquisition date:
(1) Selective is acquired in a merger or other business
combination transaction, or
(2) 50% or more of the Companys assets or earning
power is sold,
then each holder of a right shall thereafter have the right to
receive, upon exercise of a right, common stock of the acquiring
company having a market value equal to two times the exercise
price of the right.
Selective may adjust the purchase price payable, and the number
of shares of Series A Junior Preferred Stock or other
securities or property issuable, upon exercise of the rights
from time to time to prevent dilution:
(1) In the event of a stock dividend on, or a subdivision,
combination or reclassification of, common stock or the
Series A Junior Preferred Stock,
(2) If holders of the Series A Junior Preferred Stock
are granted certain rights or warrants to subscribe for
Series A Junior Preferred Stock or convertible securities
at less than the current market price of the Series A
Junior Preferred Stock, or
(3) Upon the distribution to holders of the Series A
Junior Preferred Stock of evidences of indebtedness or assets,
excluding regular quarterly cash dividends, or of subscription
rights or warrants, other than those referred to above.
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With certain exceptions, Selective will not adjust the purchase
price until cumulative adjustments amount to at least 1% of the
purchase price. Selective will not issue fractional units and,
instead, it will make an adjustment in cash based on the market
price of the Series A Junior Preferred Stock on the last
trading date prior to the date of exercise.
The rights are redeemable in whole, but not in part, at a price
of $.01 per right by the Board at any time until the stock
acquisition date on which a person or group has become the
beneficial owner of 15% or more of the outstanding shares of
Selectives common stock. At any time after a person or
group has become the beneficial owner of 15% or more of the
outstanding shares of Selectives common stock, and before
that person or group has acquired 50% of the outstanding shares
of the Companys common stock, the Board may exchange each
right, in whole or in part, held by stockholders, other than the
beneficial owner of 15% or more of the outstanding shares of the
Companys common stock, for one share of Selectives
common stock or one two-hundredth of a share of Series A
Junior Preferred Stock.
Immediately upon the action of the Board ordering redemption or
exchange of the rights, the rights will terminate and thereafter
the holders of rights will be entitled only to receive shares of
common stock or the redemption price.
Until a right is exercised, the holder will have no rights as a
stockholder of Selective beyond those as an existing
stockholder. As long as the rights are attached to
Selectives common stock, the Company will issue a right
with each new share of its common stock issued.
Selectives stockholder rights plan has the effect of
discouraging, delaying or preventing attempts to take over
Selective.
Antitakeover
Provisions
Under Selectives certificate of incorporation, a merger,
consolidation, sale of all or substantially all of the
Companys assets or other business combination involving an
interested stockholder holding 10% or more of the voting power
of its capital stock requires the affirmative vote of two-thirds
of its outstanding voting stock unless the transaction has been
approved by a majority of those members of the Board who are not
affiliated with the interested stockholder or unless the
interested stockholder offers a fair price and reasonably
uniform terms to all other stockholders, as described in
Selectives certificate of incorporation. Selectives
certificate of incorporation also provides for a classified, or
staggered, board of directors. The vote of
two-thirds of the Companys outstanding voting stock are
required to amend or repeal these provisions.
The foregoing provisions have the effect of discouraging,
delaying or preventing attempts to take over Selective.
Regulation
of Insurance Company Takeovers
Selective owns, directly or indirectly, all of the shares of
stock of its insurance company subsidiaries domiciled in Maine,
New Jersey, New York, North Carolina and South Carolina. State
insurance laws require prior approval by state insurance
departments of any acquisition of control of an insurance
company domiciled in the state or a company which controls an
insurance company domiciled in the state. For this purpose,
control generally includes ownership of 10% or more of the
voting securities of, or the possession of proxies representing
10% or more, of an insurance company or insurance holding
company, unless the state insurance commissioner determines
otherwise. As such, any purchase of 10% or more of the common
stock of Selective could require approval of the insurance
departments in the states mentioned above.
DESCRIPTION
OF DEBT SECURITIES
This section describes the general terms and provisions of the
debt securities which may be offered by us from time to time. We
will file prospectus supplements and may provide other offering
materials that will describe the specific terms of offered debt
securities. In addition, the applicable prospectus supplement
will show a ratio of earnings to fixed charges in accordance
with SEC rules.
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We may issue debt securities either separately or together with,
or upon the conversion of, or in exchange for, other securities.
We may issue senior or subordinated debt securities (including
senior subordinated and junior subordinated debt securities).
Neither the senior debt securities nor the subordinated debt
securities will be secured by any of our property or assets or
the property or assets of our subsidiaries. Thus, by owning a
debt security, you are one of our unsecured creditors.
The senior debt securities and, in the case of senior debt
securities in bearer form, any related interest coupons, will be
issued under our senior debt indenture described below and will
rank equally with all of our other unsecured and unsubordinated
debt.
The subordinated debt securities and, in the case of
subordinated debt securities in bearer form, any related
interest coupons, will be issued under our senior subordinated
debt indenture or our junior subordinated debt indenture
described below and will be subordinate in right of payment to
all of our senior indebtedness, as defined in the
applicable subordinated debt indenture. None of the indentures
limit our ability to incur additional unsecured indebtedness.
When we refer to debt securities in this prospectus,
we mean both the senior debt securities and the subordinated
debt securities. When we refer to subordinated debt
securities in this prospectus, we mean both the senior
subordinated debt securities and the junior subordinated debt
securities.
The particular terms of the offered debt securities and the
extent to which the general provisions described below may apply
to the offered debt securities will be described in the
prospectus supplement or other offering materials.
The
Senior Debt Indenture, Senior Subordinated Debt Indenture, and
Junior Subordinated Debt Indenture
The senior debt securities and the subordinated debt securities
are each governed by a document called an indenture
the senior debt indenture, in the case of the senior debt
securities, and the senior subordinated debt indenture or the
junior subordinated debt indenture, in the case of the
subordinated debt securities. Each indenture is a contract
between Selective and U.S. Bank National Association, which
acts as trustee. The indentures are substantially identical,
except for the provisions relating to subordination, which are
included only in the senior subordinated debt indenture and the
junior subordinated debt indenture.
Reference to the indenture or the trustee with respect to any
debt securities, means the indenture under which those debt
securities are issued and the trustee under that indenture.
The
trustee has two main roles:
1. The trustee can enforce the rights of holders against us
if we default on our obligations under the terms of the
indenture or the debt securities.
2. The trustee performs administrative duties for us, such
as sending interest payments and notices to holders, and
transferring a holders debt securities to a new buyer if a
holder sells.
The indenture and its associated documents contain the full
legal text of the matters described in this section. The
indenture and the debt securities are governed by New York law.
A copy of each indenture is an exhibit to the registration
statement of which this prospectus is a part. See Where
You Can Find More Information below for information on how
to obtain a copy.
General
We may issue as many distinct series of debt securities under
any of the indentures as we wish. The provisions of the senior
debt indenture, the senior subordinated debt indenture and
junior subordinated debt indenture allow us not only to issue
debt securities with terms different from those previously
issued under the applicable indenture, but also to
reopen a previous issue of a series of debt
securities and issue additional
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debt securities of that series. We may issue debt securities in
amounts that exceed the total amount specified on the cover of
your prospectus supplement at any time without your consent and
without notifying you. In addition, we may offer debt
securities, together in the form of units with other debt
securities, warrants, stock purchase contracts and preferred
stock or common stock, as described below under
Description of Stock Purchase Contracts and Stock Purchase
Units.
This section summarizes the material terms of the debt
securities that are common to all series, although the
prospectus supplement which describes the terms of each series
of debt securities may also describe differences from the
material terms summarized here.
Because this section is a summary, it does not describe every
aspect of the debt securities. This summary is subject to and
qualified in its entirety by reference to all the provisions of
the indenture, including definitions of certain terms used in
the indenture. In this summary, we describe the meaning of only
some of the more important terms. For your convenience, we also
include references in parentheses to certain sections of the
indenture. Whenever we refer to particular sections or defined
terms of the indenture in this prospectus or in the prospectus
supplement, such sections or defined terms are incorporated by
reference here or in the prospectus supplement. The forms of
senior debt indenture, the senior subordinated debt indenture
and junior subordinated debt indenture are filed as exhibits to
the registration statement of which this prospectus is a part,
and are incorporated by reference. The indentures are subject to
and governed by the Trust Indenture Act of 1939, as amended. You
should refer to the applicable indenture for the provisions that
may be important to you.
This summary also is subject to and qualified by reference to
the description of the particular terms of your series described
in the prospectus supplement. Those terms may vary from the
terms described in this prospectus. The prospectus supplement
relating to each series of debt securities will be attached to
the front of this prospectus. There may also be a further
prospectus supplement, known as a pricing supplement, which
contains the precise terms of debt securities you are offered.
In addition, we may also incorporate additional information
concerning the debt securities by reference into registration
statement of which this prospectus forms a part. See the section
entitled Where You Can Find More Information.
We may issue the debt securities as original issue discount
securities, which may be offered and sold at a substantial
discount below their stated principal amount.
(Section 3.01). The prospectus supplement relating to the
original issue discount securities will describe federal income
tax consequences and other special considerations applicable to
them. The debt securities may also be issued as indexed
securities or securities denominated in foreign currencies or
currency units, as described in more detail in the prospectus
supplement relating to any of the particular debt securities.
The prospectus supplement relating to specific debt securities
will also describe certain additional tax considerations
applicable to such debt securities.
In addition, the specific financial, legal and other terms
particular to a series of debt securities will be described in
the prospectus supplement and, if applicable, a pricing
supplement relating to the series. The prospectus supplement
relating to a series of debt securities will describe the
following terms of the series:
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the title of the series of debt securities;
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whether it is a series of senior debt securities or a series of
subordinated debt securities;
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any limit on the aggregate principal amount of the series of
debt securities;
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the date or dates on which the series of debt securities will
mature;
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the person to whom interest on a debt security is payable, if
other than the holder on the regular record date;
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the rate or rates, which may be fixed or variable per annum, at
which the series of debt securities will bear interest, if any,
and the date or dates from which that interest, if any, will
accrue;
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the circumstances, if any, in which principal, if any, or
interest on such debt security may be deferred;
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the place or places where the principal of, premium, if any, and
interest on the debt securities is payable;
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any optional redemption or repayment provisions;
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the dates on which interest, if any, on the series of debt
securities will be payable and the regular record dates for the
interest payment dates;
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the date, if any, after which and the price or prices at which
the series of debt securities may, in accordance with any
optional or mandatory redemption provisions, be redeemed and the
other detailed terms and provisions of those optional or
mandatory redemption provisions, if any;
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any mandatory or optional sinking funds or similar provisions or
provisions for redemption at the option of the issuer;
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if the debt securities may be converted into or exercised or
exchanged for our common stock or preferred stock or other of
our securities or the debt or equity securities of third
parties, the terms on which conversion, exercise or exchange may
occur, including whether conversion, exercise or exchange is
mandatory, at the option of the holder or at our option, the
period during which conversion, exercise or exchange may occur,
the initial conversion, exercise or exchange price or rate and
the circumstances or manner in which the amount of common stock
or preferred stock or other securities or the debt or equity
securities of third parties issuable upon conversion, exercise
or exchange may be adjusted;
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if other than denominations of $1,000 and any of its integral
multiples, the denominations in which the series of debt
securities will be issuable;
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the currency of payment of principal, premium, if any, and
interest on the series of debt securities;
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if the currency of payment for principal, premium, if any, and
interest on the series of debt securities is subject to our
election or that of a holder, the currency or currencies in
which payment can be made and the period within which, and the
terms and conditions upon which, the election can be made;
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if a trustee other than U.S. Bank National Association is
named for the debt securities, the name of such trustee.
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any index used to determine the amount of payment of principal
or premium, if any, and interest on the series of debt
securities;
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the applicability of the provisions described under
Defeasance below;
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any event of default under the series of debt securities if
different from those described under Events of
Default below;
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whether we will have the option of issuing certificated debt
securities in bearer form if we issue the securities outside the
United States to
non-U.S. persons,
and any special provisions relating to bearer securities that
are not addressed in this prospectus;
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if the series of debt securities will be issuable only in the
form of a global security, the depositary or its nominee with
respect to the series of debt securities and the circumstances
under which the global security may be registered for transfer
or exchange in the name of a person other than the depositary or
the nominee; and
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any other special feature of the series of debt securities.
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Overview
of Remainder of this Description
The remainder of this description summarizes:
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Additional Mechanics relevant to the debt securities under
normal circumstances, such as how holders transfer ownership and
where we make payments;
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Holders rights in several Special Situations, such as if
we merge with another company or if we want to change a term of
the debt securities;
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Subordination Provisions in the senior subordinated debt
indenture and the junior subordinated debt indenture that may
prohibit us from making payment on those securities;
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Our right to release ourselves from all or some of our
obligations under the debt securities and the indenture by a
process called Defeasance; and
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Holders rights if we Default or experience other financial
difficulties.
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Additional
Mechanics
Form,
Exchange and Transfer
Unless we specify otherwise in the prospectus supplement, the
debt securities will be issued:
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only in fully registered form;
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without interest coupons; and
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in denominations that are even multiples of $1,000.
(Section 3.02).
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Holders may have their debt securities broken into more debt
securities of smaller denominations of not less than $1,000 or
combined into fewer debt securities of larger denominations, as
long as the total principal amount is not changed.
(Section 3.05). This is called an exchange.
Holders may exchange or transfer debt securities at the office
of the trustee. They may also replace lost, stolen or mutilated
debt securities at that office. The trustee acts as our agent
for registering debt securities in the names of holders and
transferring debt securities. We may change this appointment to
another entity or perform it ourselves. The entity performing
the role of maintaining the list of registered holders is called
the security registrar. It will also perform transfers.
(Section 3.05). The trustees agent may require an
indemnity before replacing any debt securities.
Holders will not be required to pay a service charge to transfer
or exchange debt securities, but holders may be required to pay
for any tax or other governmental charge associated with the
exchange or transfer. The transfer or exchange will only be made
if the security registrar is satisfied with your proof of
ownership.
If we designate additional transfer agents, they will be named
in the prospectus supplement. We may cancel the designation of
any particular transfer agent. We may also approve a change in
the office through which any transfer agent acts.
(Section 12.02).
If the debt securities are redeemable, we may block the transfer
or exchange of debt securities during the period beginning
15 days before the day we mail the notice of redemption and
ending on the day of that mailing, in order to freeze the list
of holders to prepare the mailing. We may also refuse to
register transfers or exchanges of debt securities selected for
redemption, except that we will continue to permit transfers and
exchanges of the unredeemed portion of any debt security being
partially redeemed. (Section 3.05).
The rules for exchange described above apply to exchange of debt
securities for other debt securities of the same series and
kind. If a debt security is convertible, exercisable or
exchangeable into or for a different kind of security, such as
one that we have not issued, or for other property, the rules
governing that type of conversion, exercise or exchange will be
described in the prospectus supplement.
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Global
Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global securities that will be
deposited with or on behalf of a depositary identified in the
applicable prospectus supplement. Global securities will be
issued in registered form and may be in either temporary or
permanent form.
The related prospectus supplement will describe the specific
terms of the depositary arrangement with respect to that series
of debt securities. We anticipate that the following provisions
will apply to all depositary arrangements.
Unless otherwise specified in an applicable prospectus
supplement, global securities to be deposited with or on behalf
of a depositary will be registered in the name of that
depositary or its nominee. Upon the issuance of a global
security, the depositary for that global security will credit
the respective principal amounts of the debt securities
represented by such global security to the participants that
have accounts with that depositary or its nominee. Ownership of
beneficial interests in those global securities will be limited
to participants in the depositary or persons that may hold
interests through these participants.
A participants ownership of beneficial interests in these
global securities will be shown on the records maintained by the
depositary or its nominee. The transfer of a participants
beneficial interest will only be effected through these records.
A person whose ownership of beneficial interests in these global
securities is held through a participant will be shown on, and
the transfer of that ownership interest within that participant
will be effected only through, records maintained by the
participant. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such
securities in definitive form. Limits and laws of this nature
may impair your ability to transfer beneficial interests in a
global security.
Except as set forth below and in the indenture, owners of
beneficial interests in the global security will not be entitled
to receive debt securities of the series represented by that
global security in definitive form and will not be considered to
be the owners or holders of those debt securities under the
global security. Because the depositary can act only on behalf
of participants, which in turn act on behalf of indirect
participants, the ability of beneficial owners of interests in a
global security to pledge such interests to persons or entities
that do not participate in the depositary system, or otherwise
take actions in respect of such interests, may be affected by
the lack of a physical certificate evidencing such interests. No
beneficial owner of an interest in the global security will be
able to transfer that interest except in accordance with the
depositarys applicable procedures, in addition to those
provided for under the applicable indenture and, if applicable,
those of Euroclear Bank S.A./N.V., as operator of the Euroclear
System, Clearstream International
and/or
any
other relevant clearing system.
We will make payment of principal of, premium, if any, and any
interest on global securities to the depositary or its nominee,
as the case may be, as the registered owner or the holder of the
global security. None of us, the trustee, any paying agent or
the securities registrar for those debt securities will have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial
ownership interests in a global security or for maintaining,
supervising or reviewing any records relating to those
beneficial ownership interests. (Sec. 3.09).
We expect that the depositary for a permanent global security,
upon receipt of any payment in respect of a permanent global
security, will immediately credit participants accounts
with payments in amounts proportionate to their respective
beneficial interests in the principal amount of that global
security as shown on the records of the depositary. We also
expect that payments by participants to owners of beneficial
interests in the global security held through those participants
will be governed by standing instructions and customary
practices, as is now the case with securities held for the
accounts of customers in bearer form or registered in
street name, and will be the responsibility of those
participants.
We may at any time and in our sole discretion determine not to
have any debt securities represented by one or more global
securities. In such event, we will issue debt securities in
definitive form in exchange for all of the global securities
representing such debt securities. (Sec. 3.05).
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If set forth in the applicable prospectus supplement, an owner
of a beneficial interest in a global security may, on terms
acceptable to us and the depositary, receive debt securities of
that series in definitive form. In that event, an owner of a
beneficial interest in a global security will be entitled to
physical delivery in definitive form of debt securities of the
series represented by that global security equal in principal
amount to that beneficial interest and to have those debt
securities registered in its name.
Registered
and Bearer Securities
Registered securities may be exchangeable for other debt
securities of the same series, registered in the same name, for
the same aggregate principal amount in authorized denominations
and will be transferable at any time or from time to time at the
office of the trustee. The holder will not pay a service charge
for any such exchange or transfer except for any tax or
governmental charge incidental thereto. (Sec. 3.05). We may
also have the option of issuing debt securities in
non-registered form, as bearer securities, if we issue the debt
securities outside the United States to
non-U.S. person
and if permitted by applicable laws and regulations. In such
case, the prospectus supplement will describe the terms upon
which registered securities may be exchanged for bearer
securities of the series. If any bearer securities are issued,
any restrictions applicable to the offer, sale or delivery of
bearer securities and the terms upon which bearer securities may
be exchanged for registered securities of the same series will
be described in the prospectus supplement. The applicable
prospectus supplement will also describe the requirements with
respect to our maintenance of offices or agencies outside the
United States and the applicable U.S. federal tax law
requirements.
Payment
and Paying Agents
We will pay interest to the person listed in the trustees
records at the close of business on a particular day in advance
of each due date for interest, even if that person no longer
owns the debt security on the interest due date. Except as
otherwise will be stated in the prospectus supplement, the
record date will be the last day of the calendar month preceding
an interest due date if such interest due date is the fifteenth
day of the calendar month and will be the fifteenth day of the
calendar month preceding an interest due date if such interest
due date is the first day of the calendar month.
(Section 3.08). Holders buying and selling debt securities
must work out between them how to compensate for the fact that
we will pay all the interest for an interest period to the one
who is the registered holder on the regular record date. The
most common manner is to adjust the sale price of the securities
to pro-rate interest fairly between buyer and seller. This
prorated interest amount is called accrued interest.
We will pay interest, principal and any other money due on the
debt securities at the corporate trust office of the trustee in
New York City. That office is currently located at 100 Wall
Street, Suite 1600, New York, NY 10005. Holders must make
arrangements to have their payments picked up at or wired from
that office. We may also choose to pay interest by mailing
checks.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR
BANKS, BROKERS OR OTHER FINANCIAL INSTITUTIONS FOR INFORMATION
ON HOW THEY WILL RECEIVE PAYMENTS.
We may also arrange for additional payment offices and may
cancel or change these offices, including our use of the
trustees corporate trust office. These offices are called
paying agents. We may also choose to act as our own paying agent
or choose one of our subsidiaries to do so. We must notify the
trustee of any changes in the paying agents for any particular
series of debt securities. (Section 12.02).
Notices
We and the trustee will send notices regarding the debt
securities only to holders, using their addresses as listed in
the trustees records. (Section 1.06).
Regardless of who acts as paying agent, all money paid by us to
a paying agent that remains unclaimed at the end of two years
after the amount is due to holders will be repaid to us. After
that two-year period, holders may look to us for payment and not
to the trustee or any other paying agent. (Section 6.05).
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Special
Situations
Mergers
and Similar Events
We are generally permitted to consolidate or merge with another
company or firm. We are also permitted to sell or lease
substantially all of our assets to another company or firm.
However, when we merge out of existence or sell or lease
substantially all of our assets, we may not take any of these
actions unless all the following conditions are met:
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the other entity may not be organized under a foreign
countrys laws; that is, it must be organized under the
laws of a state of the United States or the District of Columbia
or under federal law, and it must agree to be legally
responsible for the debt securities;
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after giving effect to the transaction, no event of default
under the indenture, and no event that, after notice or lapse of
time, or both, would become an event of default, will have
occurred and be continuing unless the merger or other
transactions would cure the default; and
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we must have delivered certain certificates and opinions to the
trustee.
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If the conditions described above are satisfied with respect to
any series of debt securities, we will not need to obtain the
approval of the holders of those debt securities in order to
merge or consolidate or to sell our assets. Also, these
conditions will apply only if we wish to merge or consolidate
with another entity or sell substantially all of our assets to
another entity. We will not need to satisfy these conditions if
we enter into other types of transactions, including any
transaction in which we acquire the stock or assets of another
entity, any transaction that involves a change of control but in
which we do not merge or consolidate, any transaction in which
we sell less than substantially all of our assets and any merger
or consolidation in which we are the surviving corporation.
(Sec. 10.01). It is possible that this type of transaction may
result in a reduction in our credit rating, may reduce our
operating results or may impair our financial condition. Holders
of our debt securities, however, will have no approval right
with respect to any transaction of this type.
Modification
and Waiver of the Debt Securities
We may modify or amend the indenture without the consent of the
holders of any of our outstanding debt securities for various
enumerated purposes, including the naming, by a supplemental
indenture, of a trustee other than U.S. Bank National
Association, for a series of debt securities. We may modify or
amend the indenture with the consent of the holders of a
majority in aggregate principal amount of the debt securities of
each series affected by the modification or amendment. However,
no such modification or amendment may, without the consent of
the holder of each affected debt security:
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modify the terms of payment of principal, premium or interest;
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reduce the stated percentage of holders of debt securities
necessary to modify or amend the indenture or waive our
compliance with certain provisions of the indenture and certain
defaults thereunder; or
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modify the subordination provisions of the senior subordinated
debt indenture or the junior subordinated debt indenture in a
manner adverse to such holders.
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Subordination
Provisions
Holders of subordinated debt securities should recognize that
contractual provisions in the senior subordinated debt indenture
and in the junior subordinated debt indenture may prohibit us
from making payments on those securities. Senior subordinated
debt securities are subordinate and junior in right of payment,
to the extent and in the manner stated in the senior
subordinated debt indenture or any supplement thereto to all of
our senior indebtedness, as defined in the senior subordinated
debt indenture, including all debt securities we have issued and
will issue under the senior debt indenture. Junior subordinated
debt securities are subordinate and junior in right of payment,
to the extent and in the manner stated in the junior
subordinated debt indenture or any supplement thereto, to all of
our senior indebtedness, as defined in the
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junior subordinated debt indenture, including all debt
securities we have issued and will issue under the senior debt
indenture or any supplement thereto and under the senior
subordinated debt indenture or any supplement thereto.
Unless otherwise indicated in the applicable prospectus
supplement, the senior subordinated and junior subordinated
indentures define the term senior indebtedness with
respect to each respective series of senior subordinated and
junior subordinated debt securities, unless the instrument
creating such indebtedness or obligations provides that they are
subordinated or are not superior in right of payment to such
securities, to mean the principal, premium, if any, and interest
and any other payment in respect of: all current and future
senior and senior subordinated indebtedness and obligations for
money borrowed evidenced by bonds, notes, debentures, bonds or
similar obligations, obligations to policyholders of insurance
or investment contracts, reimbursement obligations with respect
to any letter of credit, bankers acceptance or similar
facility, lease obligations that are capitalized in accordance
with generally accepted accounting principles, any deferred
purchase price of property or services or assumption or
guarantees by Selective, or amendments, modifications, renewals,
extensions, deferrals and refundings, of any of the foregoing
types of indebtedness. In the case of the junior subordinated
indenture, unless otherwise indicated in the applicable
prospectus supplement, senior indebtedness also includes all
subordinated debt securities issued under the senior
subordinated indenture. Unless otherwise indicated in the
applicable prospectus supplement, notwithstanding anything to
the contrary in the foregoing, senior indebtedness will not
include (A) any obligation of Selective to any of its
subsidiaries, (B) any liability for Federal, state, local
or other taxes owed or owing by Selective or its subsidiaries,
(C) any accounts payable or other liability to trade
creditors (including guarantees thereof or instruments
evidencing such liabilities), or (D) any obligations with
respect to any capital stock of Selective.
Unless otherwise indicated in the applicable prospectus
supplement, Selective may not pay principal of, premium, of any,
or interest on any subordinated debt securities or defease,
purchase, redeem or otherwise retire such securities if:
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a default in the payment of any principal, or premium, if any,
or interest on any senior indebtedness, occurs and is continuing
or any other amount owing in respect of any senior indebtedness
is not paid when due; or
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any other default occurs with respect to any senior indebtedness
and the maturity of such senior indebtedness is accelerated in
accordance with its terms,
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unless and until such default in payment or event of default has
been cured or waived and any such acceleration is rescinded or
such senior indebtedness has been paid in full in cash. Unless
otherwise indicated in the applicable prospectus supplement, the
foregoing limitations will also apply to payments in respect of
the junior subordinated debt securities in the case of an event
of default under the senior subordinated indebtedness.
If there is any payment or distribution of the assets of
Selective to creditors upon a total or partial liquidation or a
total or partial dissolution or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding, holders of all
present and future senior indebtedness (which will include
interest accruing after, or which would accrue but for, the
commencement of any bankruptcy, reorganization, insolvency,
receivership or similar proceeding) are entitled to receive
payment in full before any payment or distribution, whether in
cash, securities or other property, in respect of the
subordinated indebtedness. In addition, unless otherwise
indicated in the applicable prospectus supplement, in any such
event, payments or distributions which would otherwise be made
on subordinated or junior subordinated debt securities will
generally be paid to the holders of senior indebtedness, or
their representatives, in accordance with the priorities
existing among these creditors at that time until the senior
indebtedness is paid in full.
After payment in full of all present and future senior
indebtedness, holders of subordinated debt securities will be
subrogated to the rights of any holders of senior indebtedness
to receive any further payments or distributions that are
applicable to the senior indebtedness until all the subordinated
debt securities are paid in full. The senior subordinated and
junior subordinated indentures provide that the foregoing
subordination provisions may not be changed in a manner which
would be adverse to the holders of senior indebtedness without
the consent of the holders of such senior indebtedness.
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The prospectus supplement delivered in connection with the
offering of a series of subordinated or junior subordinated debt
securities will set forth a more detailed description of the
subordination provisions applicable to any such debt securities.
If the trustee under the subordinated debt indenture or any
holders of the subordinated debt securities receive any payment
or distribution that is prohibited under the subordination
provisions, then the trustee or the holders will have to repay
that money to the holders of the senior indebtedness.
Even if the subordination provisions prevent us from making any
payment when due on the subordinated debt securities of any
series, we will be in default on our obligations under that
series if we do not make the payment when due. This means that
the trustee under the subordinated debt indenture and the
holders of that series can take action against us, but they will
not receive any money until the claims of the holders of senior
indebtedness have been fully satisfied.
Defeasance
The indenture permits us to be discharged from our obligations
under the indenture and the debt securities if we comply with
the following procedures. This discharge from our obligations is
referred to in this prospectus as defeasance. (Sec. 6.02).
Unless the applicable prospectus supplement states otherwise, if
we deposit with the trustee sufficient cash
and/or
U.S. government securities to pay and discharge the
principal and premium, if any, and interest, if any, to the date
of maturity of that series of debt securities, then from and
after the ninety-first day following such deposit:
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we will be deemed to have paid and discharged the entire
indebtedness on the debt securities of that series, and
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our obligations under the indenture with respect to the debt
securities of that series will cease to be in effect.
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Following defeasance, holders of the applicable debt securities
would be able to look only to the defeasance trust for payment
of principal and premium, if any, and interest, if any, on their
debt securities.
Defeasance may be treated as a taxable exchange of the related
debt securities for obligations of the trust or a direct
interest in the money or U.S. government securities held in
the trust. In that case, holders of debt securities would
recognize gain or loss as if the trust obligations or the money
or U.S. government securities held in the trust, as the
case may be, had actually been received by the holders in
exchange for their debt securities. Holders thereafter might be
required to include as income a different amount of income than
in the absence of defeasance. We urge prospective investors to
consult their own tax advisors as to the specific tax
consequences of defeasance.
Events of
Default
The indenture provides holders of debt securities with remedies
if we fail to perform specific obligations, such as making
payments on the debt securities. You should review these
provisions carefully in order to understand what constitutes an
event of default under the indenture.
Unless stated otherwise in the prospectus supplement, an event
of default with respect to any series of debt securities under
the indenture will be:
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default in the payment of the principal of, or premium, if any,
on any debt security of such series at its maturity;
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default in making a sinking fund payment, if any, on any debt
security of such series when due and payable;
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default for 30 days in the payment of any installment of
interest on any debt security of such series;
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default for 90 days after written notice in the observance
or performance of any other covenant in the indenture;
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certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee for us or
our property; or
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any other event of default provided in or pursuant to the
applicable resolution of our Board of Directors or supplemental
indenture under which such series of debt securities is issued.
(Sec. 7.01).
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Within 90 days after a default, the trustee must give to
the holders of any series of debt securities notice of all
uncured and unwaived defaults known to it. Where a default
occurs due to a failure to observe specified covenants, no
notice will be given until at least 30 days after the
occurrence of such default. The trustee may withhold notice to
the holders of any series of debt securities of any default with
respect to such series, except in the payment of principal,
premium or interest or in the payment of any sinking fund
installment or analogous obligation, if it considers such
withholding of notice in the interest of such holders.
(Sec. 8.02).
If an event of default with respect to any series of debt
securities has occurred and is continuing, the trustee or the
holders of not less than 25% in aggregate principal amount of
the debt securities of that series may declare the principal of
all the debt securities of such series to be due and payable
immediately. (Sec. 7.02).
The indenture contains a provision entitling the trustee to be
indemnified by the holders before proceeding to exercise any
right or power under the indenture at the request of any such
holders. (Sec. 8.03). The indenture provides that the
holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may direct the time,
method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power
conferred upon the trustee, with respect to the debt securities
of such series. (Sec. 7.12). The right of a holder to
institute a proceeding with respect to the indenture is subject
to certain conditions precedent, including notice and indemnity
to the trustee. However, the holder has an absolute right to the
receipt of principal of, premium, if any, and interest, if any,
on the debt securities of any series on the respective stated
maturities, as defined in the indenture, and to institute suit
for the enforcement of these rights. (Sec. 7.07 and
Sec. 7.08).
The holders of not less than a majority in aggregate principal
amount of the outstanding debt securities of any series may, on
behalf of the holders of all the debt securities of such series,
waive any past defaults. Each holder of a debt security affected
by a default must consent to a waiver of:
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a default in payment of the principal of or premium, if any, or
interest, if any, on any debt security of such series;
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a default in the payment of any sinking fund installment or
analogous obligation with respect to the debt securities of such
series; and
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a default in respect of a covenant or provision of the indenture
that cannot be amended or modified without the consent of the
holder of each outstanding debt security affected. (Sec. 7.13).
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We will furnish to the trustee annual statements as to the
fulfillment of our obligations under the indenture. (Sec. 9.04
and Sec. 12.05).
Our
Relationship with the Trustee
Affiliates of U.S. Bank National Association, the current
trustee under the indentures, may provide banking and corporate
trust services to us and extend credit to us and any of our
subsidiaries. The trustee may act as a depository of our funds
and hold our common shares for the benefit of its customers,
including customers over whose accounts the trustee has
discretionary authority. If a bank or trust company other than
U.S. Bank National Association is to act as trustee for a
series of senior, senior subordinated or junior subordinated
debt securities, the applicable prospectus supplement will
provide information concerning that other trustee.
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DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of common stock,
preferred stock or debt securities. Warrants may be issued
independently or together with debt securities, preferred stock
or common stock offered by any prospectus supplement or other
offering materials and may be attached to or separate from any
of the offered securities. Each warrant will entitle the holder
to purchase the number of shares of common stock or preferred
stock or principal amount of debt securities, as the case may
be, at the exercise price and in the manner specified in the
prospectus supplement or other offering materials relating to
those warrants. Warrants will be issued under one or more
warrant agreements to be entered into between us and a bank or
trust company, as warrant agent. The warrant agent will act
solely as our agent in connection with the warrants and will not
assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of warrants. If we offer
warrants, we will file the warrant agreement relating to the
offered warrants as an exhibit to, or incorporate it by
reference in, the registration statement of which this
prospectus is a part. The prospectus supplement or other
offering materials relating to a particular issue of warrants
will describe the terms of the warrants.
DESCRIPTION
OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue contracts, including contracts obligating holders
to purchase from us, and us to sell to the holders, a specified
number of shares of common stock at a future date or dates,
which we refer to in this prospectus as stock purchase
contracts. The price per share of common stock and the number of
shares of common stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference
to a specific formula set forth in the stock purchase contracts.
The stock purchase contracts may be issued separately or as part
of units consisting of a stock purchase contract and beneficial
interests in debt securities, preferred stock or debt
obligations of third parties, including U.S. treasury
securities, securing the holders obligations to purchase
common stock under the stock purchase contracts, which we refer
to in this prospectus as stock purchase units. The stock
purchase contracts may require us to make periodic payments to
the holders of the stock purchase units or vice versa, and these
payments may be unsecured or refunded on some basis. The stock
purchase contracts may require holders to secure their
obligations under those contracts in a specified manner.
The applicable prospectus supplement or other offering materials
will describe the terms of the stock purchase contracts or stock
purchase units, including, if applicable, collateral or
depositary arrangements, relating to the stock purchase
contracts or stock purchase units.
LEGAL
MATTERS
Unless otherwise specified in a prospectus supplement
accompanying this prospectus, Robyn P. Turner, Corporate Counsel
of Selective, will provide opinions regarding the authorization
and validity of the common stock and preferred stock, and
Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York, will provide opinions regarding the validity of the debt
securities, warrants, stock purchase contracts, and stock
purchase units.
EXPERTS
The consolidated balance sheets of Selective as of
December 31, 2005 and 2004 and the related consolidated
statements of income, stockholders equity and cash flows
for each of the years in the three-year period ended
December 31, 2005, the related financial statement
schedules, and managements assessment of the effectiveness
of internal control over financial reporting as of
December 31, 2005, included in our Annual Report on
Form 10-K
for the year ended December 31, 2005, and incorporated by
reference herein, have been audited by KPMG LLP, an independent
registered public accounting firm, as set forth in their reports
appearing therein. These consolidated financial statements, the
financial statement schedules and managements assessment
of the effectiveness of internal control over financial
reporting referred to above are
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included in reliance upon such reports of KPMG LLP, which are
incorporated by reference herein, given upon the authority of
such firm as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
Selective files its annual report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
proxy statements, and other required information with the SEC.
The public may read and copy any materials on file with the SEC
at the SECs Public Reference Room at
100 F Street, N.E., Room 1580,
Washington, D.C. 20549. The public may obtain information
on the operation of the Public Reference Room by calling the SEC
at
1-800-SEC-0330.
The SEC also maintains an Internet site,
www.sec.gov,
that contains reports, proxy and information statements, and
other information regarding issuers, including Selective, that
file electronically with the SEC.
The SEC allows Selective to incorporate by reference
the information it files with them, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is
considered to be a part of this Prospectus, and information that
Selective files later with the SEC will automatically update and
supersede this information. Selective incorporates by reference
the documents listed below (excluding any portions of such
documents that have been furnished but not
filed for purposes of the Exchange Act):
1. Annual Report on
Form 10-K,
as amended, for the fiscal year ended December 31, 2005;
2. Selectives definitive Proxy Statement dated
March 28, 2006, filed in connection with the Companys
April 26, 2006 Annual Meeting of Stockholders;
3. Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2006 and June 30,
2006;
4. Current Reports on
Form 8-K,
filed February 3, 2006, February 6, 2006,
February 15, 2006, April 28, 2006 and August 16,
2006.
5. The descriptions of the common stock and preferred share
purchase rights associated with the common stock set forth in
our registration statements filed pursuant to Section 12 of
Exchange Act, and any amendment or report filed for the purpose
of updated those descriptions.
All documents we file pursuant to Section 13(a), 13(c), 14
or 15(d) under the Securities Exchange Act after the date of
this prospectus and prior to the termination of the offering of
securities by this prospectus shall also be deemed to be
incorporated by reference in this prospectus from the date of
filing of the documents, except for information furnished under
Item 2.02 and Item 7.01 of
Form 8-K,
which is not deemed filed and not incorporated by reference
herein. Information that we file with the SEC will automatically
update and may replace information in this prospectus and
information previously filed with the SEC.
You may request a copy of these filings, at no cost, by calling
or writing to:
Selective Insurance Group, Inc.
40 Wantage Avenue
Branchville, New Jersey 07890
Attention: Michael H. Lanza, Senior Vice President,
General Counsel and Corporate Secretary
(973) 948-3000
24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.
|
The expenses relating to the registration of the securities will
be borne by the registrant. Such expenses are estimated to be as
follows:
|
|
|
|
|
Securities and Exchange Commission
Registration Fee
|
|
$
|
*
|
|
Accounting Fees and Expenses
|
|
$
|
65,000
|
|
Legal Fees and Expenses
|
|
$
|
100,000
|
|
Printing expenses
|
|
$
|
20,000
|
|
Transfer Agent, Registrar and
Trustee Fees
|
|
$
|
17,000
|
|
Rating Agency Fees
|
|
$
|
200,000
|
|
Miscellaneous expenses
|
|
$
|
46,000
|
|
|
|
|
|
|
Total
|
|
$
|
448,000
|
|
|
|
*
|
To be deferred under Rule 456(b) and calculated in
connection with the offering of securities under this
registration statement under Rule 457(r).
|
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Selective is organized under the laws of the State of New
Jersey. The New Jersey Business Corporation Act, as amended (the
Act), provides that a New Jersey corporation has the
power generally to indemnify its directors, officers, employees
and other agents against expenses and liabilities in connection
with any proceeding involving such person by reason of his or
her being or having been a corporate agent, other than a
proceeding by or in the right of the corporation, if such person
acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal proceeding, such
person had no reasonable cause to believe his or her conduct was
unlawful. In the case of an action brought by or in the right of
the corporation, indemnification of directors, officers,
employees and other agents against expenses is permitted if such
person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation; however, no indemnification is permitted in respect
of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation, unless and only
to the extent that the New Jersey Superior Court, or the court
in which such proceeding 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 such indemnification. Expenses
incurred by a director, officer, employee or other agent in
connection with a proceeding may be, under certain
circumstances, paid by the corporation in advance of the final
disposition of the proceeding as authorized by the Board. The
power to indemnify and advance expenses under the Act does not
exclude other rights to which a director, officer, employee or
other agent of the corporation may be entitled to under the
certificate of incorporation, by-laws, agreement, vote of
stockholders, or otherwise; provided that no indemnification is
permitted to be made to or on behalf of such person if a
judgment or other final adjudication adverse to such person
establishes that his or her acts or omissions were in breach of
his or her duty of loyalty to the corporation or its
shareholders, were not in good faith or involved a violation of
the law, or resulted in the receipt by such person of an
improper personal benefit.
Under the Act, a New Jersey corporation has the power to
purchase and maintain insurance on behalf of any director,
officer, employee or other agent against any expenses incurred
in any proceeding and any liabilities asserted against him or
her by reason of his or her being or having been a corporate
agent, whether or not the corporation has the power to indemnify
him or her against such expenses and liabilities under the Act.
All of the foregoing powers of indemnification granted to a New
Jersey corporation may be exercised by such corporation
notwithstanding the absence of any provision in its certificate
of incorporation or by-laws authorizing the exercise of such
powers. A New Jersey corporation, however, may provide, with
certain
II-1
limitations, in its certificate of incorporation that a director
or officer shall not be personally liable, or shall be liable
only to the extent therein provided, to the corporation or its
shareholders for damages for breach of a duty owed to the
corporation or its shareholders.
Reference is made to
Sections 14A:3-5
and 14A:2-7(3) of the Act in connection with the above summary
of indemnification, insurance and limitation of liability.
Section (a) of Article Ninth of Selectives
restated certificate of incorporation, as amended, and
Section 14 of our By-Laws provide generally that a director
shall not be personally liable to the Company or its
stockholders for damages from breach of any duty owed to the
Company or its stockholders, except to the extent such personal
liability may not be eliminated or limited under the Act. Such
provisions further provide generally that an officer of the
Company shall not be personally liable to Selective or its
stockholders for damages or breach of any duty owed to the
Company or its stockholders, except to the extent and for the
duration of any period of time such personal liability may not
be eliminated or limited under the Act.
Section (b) of Article Ninth of Selectives
restated certificate of incorporation, as amended, and
Section 14A of Selectives By-Laws provide generally
that each person who was or is made a party to or involved in a
pending, threatened or completed civil, criminal, administrative
or arbitrative action, suit or proceeding, or any appeal therein
or any inquiry or investigation which could lead to such action,
suit or proceeding of the Company or any constituent corporation
absorbed by it in a consolidation or merger, or by reason of his
or her having been a director, officer, trustee, employee or
agent of another entity serving as such at the Companys
request, shall be indemnified and held harmless by Selective to
the fullest extent permitted by the Act, as amended (but, in the
case of any amendments, only to the extent such amendment
permits Selective to provide broader indemnification rights than
the Act permitted prior to such amendment), from and against any
and all reasonable costs, disbursements and attorneys
fees, and any and all amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties, incurred or
suffered in connection with any such proceeding, and such
indemnification shall continue as to a person who has ceased to
be a director, officer, trustee, employee or agent and shall
inure to the benefit of such persons heirs, executors,
administrators and assigns; provided, however, that, except as
provided above, Selective shall indemnify any such person
seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or
part thereof) was specifically authorized by the Board. Such
provisions of Selectives certificate of incorporation and
By-Laws provide, under certain circumstances, for a right to be
paid by the Company the expenses incurred in any proceeding in
advance of the final disposition of such proceeding as
authorized by the Board. Further, Selective is authorized to
purchase and maintain insurance on behalf of any director,
officer, employee or agent of the Companys against any
expenses incurred and any liabilities asserted against him/her
in any proceeding by reason of such person having been a
director, officer, employee or agent, whether or not the Company
would have the power to indemnify such person.
Selectives directors and officers are insured by policies
purchased by it against liability and expenses incurred in their
capacity as directors or officers.
|
|
Item 16.
|
List
of Exhibits.
|
The exhibits to this registration statement are listed in the
exhibit index, which appears elsewhere herein and is
incorporated herein by reference.
(a) 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-2
(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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in amount and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the
II-3
securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating the offering containing material information about the
undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each
filing of an employee benefit plans 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 therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) 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 Securities Act of 1933 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, the registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Branchville, State of New Jersey, on
the 18th day of September, 2006.
SELECTIVE INSURANCE GROUP, INC.
|
|
|
|
By:
|
/s/ Gregory
E. Murphy
|
Name: Gregory E. Murphy
|
|
|
|
Title:
|
Chairman, President and Chief
|
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dated indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Gregory
E. Murphy
Gregory
E. Murphy
|
|
Chairman, President and Chief
Executive Officer (Principal executive officer)
|
|
September 18, 2006
|
|
|
|
|
|
/s/ Dale
A. Thatcher
Dale
A. Thatcher
|
|
Executive Vice President, Chief
Financial Officer & Treasurer (Principal financial
officer and principal accounting officer)
|
|
September 18, 2006
|
|
|
|
|
|
*
Paul
D. Bauer
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
W.
Marston Becker
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
A.
David Brown
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
John
C. Burville
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
William
M. Kearns, Jr.
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
Joan
M. Lamm-Tennant
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
S.
Griffin McClellan III
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
Ronald
L. OKelley
|
|
Director
|
|
September 18, 2006
|
II-5
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
*
John
F. Rockart
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
William
M. Rue
|
|
Director
|
|
September 18, 2006
|
|
|
|
|
|
*
J.
Brian Thebault
|
|
Director
|
|
September 18, 2006
|
Michael H. Lanza hereby signs this registration statement on
Form S-3
on behalf of each of the indicated persons for whom he is
attorney-in-fact
on September 18, 2006 pursuant to a power of attorney filed
herewith.
|
|
*By:
|
/s/ Michael
H. Lanza
|
Attorney-in-Fact
II-6
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
|
|
|
1
|
.1
|
|
Form of Underwriting Agreement.*
|
|
3
|
.1
|
|
Restated Certificate of
Incorporation of Selective Insurance Group, Inc., dated
August 4, 1977, as amended (incorporated by reference
herein to Exhibit 3.1 to the Companys Annual Report
on
Form 10-K
for the year ended December 31, 1997, File
No. 0-8641).
|
|
3
|
.2
|
|
By-Laws of Selective Insurance
Group, Inc., adopted on August 26, 1977, as amended
(incorporated by reference herein to Exhibit 3.1 to the
Companys Current Report on
Form 8-K
filed February 3, 2006, File
No. 0-8641.
|
|
4
|
.1
|
|
Form of Indenture for Senior Debt
Securities.
|
|
4
|
.2
|
|
Form of Indenture for Senior
Subordinated Debt Securities.
|
|
4
|
.3
|
|
Form of Indenture for Junior
Subordinated Debt Securities.
|
|
4
|
.4
|
|
Form of Warrant Agreement
(including form of warrant certificate).*
|
|
4
|
.5
|
|
Form of Stock Purchase Contract
(including form of Stock Purchase Contract Certificate).*
|
|
4
|
.6
|
|
Form of Stock Purchase Unit
Agreement (including form of Stock Purchase Unit Certificate).*
|
|
4
|
.7
|
|
Amended and Restated Rights
Agreement, dated February 2, 1999, between Selective
Insurance Group, Inc., and First Chicago Trust (incorporated by
reference herein to the Companys Current Report on
Form 8-K
filed February 2, 1999, File
No. 0-8641).
|
|
4
|
.8
|
|
Form of Preferred Stock
Certificate.*
|
|
4
|
.9
|
|
Form of Senior Debt Security.*
|
|
4
|
.10
|
|
Form of Senior Subordinated Debt
Security.*
|
|
4
|
.11
|
|
Form of Junior Subordinated Debt
Security.*
|
|
5
|
.1
|
|
Opinion of Robyn P.
Turner, Esq.
|
|
5
|
.2
|
|
Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP.
|
|
12
|
|
|
Statement re Computation of Ratios.
|
|
23
|
.1
|
|
Consent of Independent Auditors.
|
|
23
|
.2
|
|
Consent of Robyn P.
Turner, Esq. (included in Exhibit 5.1).
|
|
23
|
.3
|
|
Consent of Skadden, Arps, Slate,
Meagher & Flom LLP (included in Exhibit 5.2).
|
|
24
|
.1
|
|
Power of Attorney of Paul D. Bauer.
|
|
24
|
.2
|
|
Power of Attorney of W. Marston
Becker.
|
|
24
|
.3
|
|
Power of Attorney of A. David
Brown.
|
|
24
|
.4
|
|
Power of Attorney of John C.
Burville.
|
|
24
|
.5
|
|
Power of Attorney of William M.
Kearns, Jr.
|
|
24
|
.6
|
|
Power of Attorney of Joan M.
Lamm-Tennant.
|
|
24
|
.7
|
|
Power of Attorney of S. Griffin
McClellan III.
|
|
24
|
.8
|
|
Power of Attorney of Ronald L.
OKelley.
|
|
24
|
.9
|
|
Power of Attorney of John F.
Rockart.
|
|
24
|
.10
|
|
Power of Attorney of William M.
Rue.
|
|
24
|
.11
|
|
Power of Attorney of J. Brian
Thebault.
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of U.S. Bank National Association, as
Trustee under the Senior Debt Indenture, the Senior Subordinated
Debt Indenture, and the Junior Subordinated Debt Indenture.
|
|
|
*
|
To be filed by amendment to the Registration Statement or
incorporated by reference from documents filed or to be filed
with the SEC under the Securities Exchange Act of 1934, as
amended.
|
II-7
Exhibit 4.1
SELECTIVE INSURANCE GROUP, INC.
AND
U.S. BANK
NATIONAL ASSOCIATION
Trustee
Indenture
Dated as of September , 2006
SELECTIVE INSURANCE GROUP, INC.
Indenture Dated as of September , 2006
CROSS REFERENCE SHEET*
Showing the Location in the Indenture of the Provisions Inserted Pursuant to Sections 310 to
318(a) inclusive of the Trust Indenture Act of 1939.
|
|
|
|
|
|
|
Provisions of
|
|
|
Trust Indenture Act
|
|
|
of 1939
|
|
Indenture Provision
|
§ 310(a) (1), (2)
|
|
§ 8.09
|
|
|
|
|
(3)
|
|
Not Applicable
|
|
|
|
|
(4)
|
|
Not Applicable
|
|
|
|
(b
|
)
|
|
§ 8.08; § 8.10
|
|
|
|
(c
|
)
|
|
Not Applicable
|
§ 311(a)
|
|
§ 8.13(a)
|
|
|
|
(b
|
)
|
|
§ 8.13(b)
|
|
|
|
(b
|
)(2)
|
|
§ 9.03 (a)(ii); § 9.03(b)
|
|
|
|
(c
|
)
|
|
Not Applicable
|
§ 312(a)
|
|
§ 9.01; § 9.02(a)
|
|
|
|
(b
|
)
|
|
§ 9.02(b)
|
|
|
|
(c
|
)
|
|
§ 9.02(c)
|
§ 313(a)
|
|
§ 9.03(a)
|
|
|
|
(b
|
)(1)
|
|
Not Applicable
|
|
|
|
|
(2)
|
|
§ 9.03(b)
|
|
|
|
(c
|
)
|
|
§ 9.03(a); § 9.03(b)
|
|
|
|
(d
|
)
|
|
§ 9.03(c)
|
§ 314(a)
|
|
§ 9.04
|
|
|
|
(b
|
)
|
|
Not Applicable
|
|
|
|
(c
|
)
|
|
§ 1.02
|
|
|
|
(d
|
)
|
|
Not Applicable
|
|
|
|
(e
|
)
|
|
§ 1.02
|
|
|
|
(f
|
)
|
|
Not Applicable
|
§ 315(a)(1)
|
|
§ 8.01(a)(i)
|
|
|
|
|
(2)
|
|
§ 8.01(a)(ii)
|
|
|
|
(b
|
)
|
|
§ 8.02
|
|
|
|
(c
|
)
|
|
§ 8.01(b)
|
|
|
|
(d
|
)(1)
|
|
§ 8.01(a)
|
|
|
|
|
(2)
|
|
§ 8.01(c)(ii)
|
|
|
|
|
(3)
|
|
§ 8.01(c)(iii)
|
|
|
|
(e
|
)
|
|
§ 7.14
|
§ 316(a)
|
|
§ 7.12; § 7.13
|
|
|
|
(b
|
)
|
|
§ 7.08
|
|
|
|
(c
|
)
|
|
§ 1.04
|
§ 317(a)(1), (2)
|
|
§ 7.03; § 7.04
|
|
|
|
(b
|
)
|
|
§ 12.03
|
§ 318(a)
|
|
§ 1.08
|
|
|
|
*
|
|
This Cross Reference Sheet is not part of the Indenture.
|
i
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
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|
Page
|
|
ARTICLE ONE
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
|
|
|
|
|
|
|
Section 1.01
|
|
Definitions
|
|
|
1
|
|
Section 1.02
|
|
Compliance Certificates and Opinions
|
|
|
7
|
|
Section 1.03
|
|
Form of Documents Delivered to Trustee
|
|
|
7
|
|
Section 1.04
|
|
Act of Holders
|
|
|
8
|
|
Section 1.05
|
|
Notices, etc., to Trustee and Company
|
|
|
9
|
|
Section 1.06
|
|
Notice to Holders; Waiver
|
|
|
9
|
|
Section 1.07
|
|
Immunity of Incorporator, Stockholders, Officers and Directors
|
|
|
9
|
|
Section 1.08
|
|
Conflict with Trust Indenture Act
|
|
|
10
|
|
Section 1.09
|
|
Effect of Headings and Table of Contents
|
|
|
10
|
|
Section 1.10
|
|
Successors and Assigns
|
|
|
10
|
|
Section 1.11
|
|
Separability Clause
|
|
|
10
|
|
Section 1.12
|
|
Benefits of Indenture
|
|
|
10
|
|
Section 1.13
|
|
Governing Law
|
|
|
10
|
|
Section 1.14
|
|
Cross References
|
|
|
10
|
|
Section 1.15
|
|
Counterparts
|
|
|
10
|
|
Section 1.16
|
|
Legal Holidays
|
|
|
10
|
|
Section 1.17
|
|
Securities in Foreign Currencies
|
|
|
11
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TWO
|
SECURITY FORMS
|
|
|
|
|
|
|
|
|
|
Section 2.01
|
|
Forms Generally
|
|
|
11
|
|
Section 2.02
|
|
Form of Certificate of Authentication
|
|
|
11
|
|
Section 2.03
|
|
Securities in Global Form
|
|
|
12
|
|
|
|
|
|
|
|
|
|
|
ARTICLE THREE
|
THE SECURITIES
|
|
|
|
|
|
|
|
|
|
Section 3.01
|
|
Amount Unlimited; Issuable in Series
|
|
|
12
|
|
Section 3.02
|
|
Denominations
|
|
|
15
|
|
Section 3.03
|
|
Authentication and Dating
|
|
|
15
|
|
Section 3.04
|
|
Execution of Securities
|
|
|
16
|
|
Section 3.05
|
|
Exchange and Registration of Transfer of Securities
|
|
|
16
|
|
Section 3.06
|
|
Mutilated, Destroyed, Lost or Stolen Securities
|
|
|
19
|
|
Section 3.07
|
|
Temporary Securities
|
|
|
19
|
|
Section 3.08
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
20
|
|
Section 3.09
|
|
Persons Deemed Owners
|
|
|
21
|
|
Section 3.10
|
|
Cancellation
|
|
|
21
|
|
Section 3.11
|
|
Computation of Interest
|
|
|
22
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE FOUR
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
|
Section 4.01
|
|
Applicability of Article
|
|
|
22
|
|
Section 4.02
|
|
Election to Redeem; Notice to Trustee
|
|
|
22
|
|
Section 4.03
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
22
|
|
Section 4.04
|
|
Notice of Redemption
|
|
|
23
|
|
Section 4.05
|
|
Deposit of Redemption Price
|
|
|
23
|
|
Section 4.06
|
|
Securities Payable on Redemption Date
|
|
|
23
|
|
Section 4.07
|
|
Securities Redeemed in Part
|
|
|
24
|
|
|
|
|
|
|
|
|
|
|
ARTICLE FIVE
|
SINKING FUNDS
|
|
|
|
|
|
|
|
|
|
Section 5.01
|
|
Applicability of Article
|
|
|
24
|
|
Section 5.02
|
|
Satisfaction of Mandatory Sinking Fund Payments with Securities
|
|
|
24
|
|
Section 5.03
|
|
Redemption of Securities for Sinking Fund
|
|
|
24
|
|
|
|
|
|
|
|
|
|
|
ARTICLE SIX
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
|
|
|
Section 6.01
|
|
Satisfaction and Discharge of Indenture
|
|
|
26
|
|
Section 6.02
|
|
Satisfaction, Discharge and Defeasance of Securities of any Series
|
|
|
27
|
|
Section 6.03
|
|
Application of Trust Money
|
|
|
28
|
|
Section 6.04
|
|
Paying Agent to Repay Moneys Held
|
|
|
29
|
|
Section 6.05
|
|
Return of Unclaimed Moneys
|
|
|
29
|
|
|
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
REMEDIES
|
|
|
|
|
|
|
|
|
|
Section 7.01
|
|
Events of Default
|
|
|
29
|
|
Section 7.02
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
31
|
|
Section 7.03
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
32
|
|
Section 7.04
|
|
Trustee May File Proofs of Claim
|
|
|
32
|
|
Section 7.05
|
|
Trustee May Enforce Claims without Possession of Securities
|
|
|
33
|
|
Section 7.06
|
|
Application of Money Collected
|
|
|
33
|
|
Section 7.07
|
|
Limitation on Suits
|
|
|
34
|
|
Section 7.08
|
|
Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
35
|
|
Section 7.09
|
|
Restoration of Rights and Remedies
|
|
|
35
|
|
Section 7.10
|
|
Rights and Remedies Cumulative
|
|
|
35
|
|
Section 7.11
|
|
Delay or Omission Not Waiver
|
|
|
35
|
|
Section 7.12
|
|
Control by Holders
|
|
|
35
|
|
Section 7.13
|
|
Waiver of Past Defaults
|
|
|
35
|
|
Section 7.14
|
|
Undertaking for Costs
|
|
|
36
|
|
Section 7.15
|
|
Waiver of Stay or Extension Laws
|
|
|
36
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
ARTICLE EIGHT
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
Section 8.01
|
|
Certain Duties and Responsibilities
|
|
|
36
|
|
Section 8.02
|
|
Notice of Defaults
|
|
|
38
|
|
Section 8.03
|
|
Certain Rights of Trustee
|
|
|
38
|
|
Section 8.04
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
39
|
|
Section 8.05
|
|
May Hold Securities
|
|
|
39
|
|
Section 8.06
|
|
Money Held in Trust
|
|
|
39
|
|
Section 8.07
|
|
Compensation and Reimbursement
|
|
|
39
|
|
Section 8.08
|
|
Disqualification; Conflicting Interests
|
|
|
40
|
|
Section 8.09
|
|
Corporate Trustee Required; Different Trustees for Different Series; Eligibility
|
|
|
40
|
|
Section 8.10
|
|
Resignation and Removal; Appointment of Successor
|
|
|
41
|
|
Section 8.11
|
|
Acceptance of Appointment by Successor
|
|
|
42
|
|
Section 8.12
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
43
|
|
Section 8.13
|
|
Preferential Collection of Claims against Company
|
|
|
43
|
|
Section 8.14
|
|
Authenticating Agent
|
|
|
44
|
|
|
|
|
|
|
|
|
|
|
ARTICLE NINE
|
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
|
|
Section 9.01
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
45
|
|
Section 9.02
|
|
Preservation of Information; Communications to Holders
|
|
|
45
|
|
Section 9.03
|
|
Reports by Trustee
|
|
|
46
|
|
Section 9.04
|
|
Reports by Company
|
|
|
47
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TEN
|
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
|
|
|
|
|
|
|
|
|
|
Section 10.01
|
|
Company May Consolidate, etc., Only on Certain Terms
|
|
|
47
|
|
Section 10.02
|
|
Successor Person Substituted
|
|
|
48
|
|
|
|
|
|
|
|
|
|
|
ARTICLE ELEVEN
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
|
Section 11.01
|
|
Supplemental Indentures without Consent of Holders
|
|
|
48
|
|
Section 11.02
|
|
Supplemental Indentures with Consent of Holders
|
|
|
50
|
|
Section 11.03
|
|
Execution of Supplemental Indentures
|
|
|
51
|
|
Section 11.04
|
|
Notice of Supplemental Indenture
|
|
|
51
|
|
Section 11.05
|
|
Effect of Supplemental Indentures
|
|
|
51
|
|
Section 11.06
|
|
Conformity with Trust Indenture Act
|
|
|
51
|
|
Section 11.07
|
|
Reference in Securities to Supplemental Indentures
|
|
|
51
|
|
|
|
|
|
|
|
|
|
|
ARTICLE TWELVE
|
COVENANTS
|
|
|
|
|
|
|
|
|
|
Section 12.01
|
|
Payment of Principal, Premium and Interest
|
|
|
51
|
|
iv
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
Section 12.02
|
|
Maintenance of Office or Agency
|
|
|
52
|
|
Section 12.03
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
52
|
|
Section 12.04
|
|
Statement as to Compliance
|
|
|
53
|
|
Section 12.05
|
|
Corporate Existence
|
|
|
53
|
|
Section 12.06
|
|
Permit No Vacancy in Office of Trustee
|
|
|
53
|
|
Section 12.07
|
|
Waiver
|
|
|
53
|
|
v
INDENTURE, dated as of September , 2006, between SELECTIVE INSURANCE GROUP, INC., a New
Jersey corporation, having its principal office at 40 Wantage Avenue, Branchville, New Jersey 07890
(the
Company
), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, having its
corporate trust office at U.S. Bank, 10 W. Market Street, Suite 1150, Indianapolis, IN 46204, as
trustee hereunder (the
Trustee
).
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate purposes and to issue debentures,
notes or other evidences of unsecured indebtedness therefor; and for its corporate purposes, the
Company has determined to make and issue its debentures, notes or other evidences of unsecured
indebtedness to be issued in one or more series (the
Securities
), as hereinafter provided, up to
such principal amount or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein contained and of the
purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar to
the Company duly paid by the Trustee at or before the ensealing and delivery of these presents, and
for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to
declare the terms and conditions upon which the Securities are to be issued, IT IS HEREBY
COVENANTED, DECLARED AND AGREED, by and between the parties hereto, that all the Securities are to
be executed, authenticated and delivered subject to the further covenants and conditions
hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit of those who shall
hold the Securities, or any of them, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01
Definitions
. For all purposes of this Indenture, of all indentures supplemental
hereto and all Securities issued hereunder except as otherwise expressly provided or unless the
context otherwise requires: (a) the terms defined in this Article shall have the meanings assigned
to them in this Article, and include the plural as well as the singular; (b) all terms used in this
Indenture, in any indenture supplemental hereto or in any such Securities which are defined in the
Trust Indenture Act shall have the meanings assigned to them in said Act; (c) all accounting terms
not otherwise defined herein or in such Securities shall have the meanings assigned to them in
accordance with generally accepted accounting principles.
Certain terms used in Article Eight hereof are defined in that Article.
1
Act
when used with respect to any Holder has the meaning specified in Section 1.04 hereof.
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.
Authenticating
Agent
: See Section 8.14 hereof.
Authorized Newspaper
means a newspaper of general circulation in the same city in which the
Place of Payment with respect to Securities of a series shall be located or in the Borough of
Manhattan, The City of New York, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive
weekly publications in an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week and in the same or
in different Authorized Newspapers.
Bearer Rules
means the provisions of the Internal Revenue Code, in effect from time to time,
governing the treatment of bearer obligations and any regulations thereunder including, to the
extent applicable to any series of Securities, proposed or temporary regulations.
Board of Directors
means either the board of directors of the Company or any committee of
that board duly authorized to act for it in respect hereof.
Board Resolution
means a copy of a resolution or resolutions 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.
Business Day
means (i) when used with respect to any payment, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in the Place of
Payment with respect to such payment are authorized or required by law or executive order to close
and (ii) when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan, The City of New York,
or in the city in which the Corporate Trust Office of the Trustee is located are authorized or
required by law or executive order to close.
Commission
means the United States Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or 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.
Company
means the corporation named as the Company in the first paragraph of this
instrument until a successor corporation shall have become such
pursuant to the
2
applicable
provisions of this Indenture, and thereafter Company shall mean each such successor corporation.
Company Consent
,
Company Order
and
Company Request
mean, respectively, a written
consent, order or request signed in the name of the Company by its Chairman of the Board, any one
of its Vice Chairmen, the Chief Executive Officer, its President, any one of its Senior Executive
Vice Presidents, any one of its Executive Vice Presidents, any one of its Senior Vice Presidents,
any one of its Vice Presidents, its Treasurer, any one of its Assistant Treasurers, its Secretary
or any one of its Assistant Secretaries, and delivered to the Trustee.
Corporate Trust Office
means the principal office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office of U.S. Bank
National Association, at the date of the execution of this Indenture, is located at U.S. Bank, 10
W. Market Street, Suite 1150, Indianapolis, IN 46204, Attention: Ann Forey.
corporation
means a corporation, association, company or business trust.
Defaulted Interest
: See Section 3.08 hereof.
Depositary
when used with respect to the Securities of any series issuable or issued, in
whole or in part, in the form of a Global Security, means the Person designated as Depositary by
the Company pursuant to Section 3.01 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 Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
Dollars
and the sign
$
mean 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.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Event of Default
: See Section 7.01 hereof.
Federal Bankruptcy Code
: See Section 7.01 hereof.
Foreign Currency
means any currency issued by the government of any country other than the
United States of America or any composite currency (including, without limitation, the European
Currency Unit).
Global Security
means a Security issued to evidence all or a part of any series of
Securities which is executed by the Company and authenticated and delivered to the Depositary or
pursuant to the Depositarys instructions, all in accordance with this Indenture and pursuant to a
Company Order, which shall be registered in the name of the Depositary or its nominee.
3
Holder
means, unless otherwise established as contemplated by Section 3.01 with respect to
the Securities of any series, a Person in whose name a Security of any series is registered in the
Securities Register for the Securities of such series.
Indenture
means this instrument as originally executed, or as it may be amended or
supplemented from time to time as herein provided, and shall include the form and terms of the
Securities of each series established as contemplated by Sections 2.01 and 3.01.
interest
when used with respect to any non-interest bearing Security means interest payable
after Maturity thereof.
Interest Payment Date
when used with respect to the Securities of any series means the
Stated Maturity of an installment of interest on the Securities of such series.
Maturity
when used with respect to any Security means the date on which the principal of
such Security becomes due and payable whether at the Stated Maturity or by declaration of
acceleration, call for redemption, pursuant to a sinking fund, notice of option to elect repayment
or otherwise.
Officers Certificate
means a certificate of the Company signed by its Chairman of the
Board, any one of its Vice Chairmen, the Chief Executive Officer, its President, any one of its
Senior Executive Vice Presidents, any one of its Executive Vice Presidents, any one of its Senior
Vice Presidents, any one of its Vice Presidents, its Treasurer, any one of its Assistant
Treasurers, its Secretary or any one of its Assistant Secretaries, and delivered to the Trustee.
Wherever this Indenture requires that an Officers Certificate be signed also by an accountant or
other expert, such accountant or other expert (except as otherwise expressly provided in this
Indenture) may be in the employ of the Company and shall be acceptable to the Trustee.
Opinion of Counsel
means a written opinion of the counsel, who may be an employee of or of
counsel to the Company, or other counsel reasonably satisfactory to the Trustee.
Original Issue Discount Security
means any Security which (i) is issued at a price lower
than the amount payable upon the Stated Maturity thereof and (ii) provides for an amount less than
the principal amount thereof to be due and payable upon redemption or a declaration of acceleration
of the Stated Maturity thereof pursuant to Section 7.02 hereof.
Outstanding
when used with respect to Securities means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except
:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) 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 Securities; provided,
however, that, if such Securities or portions thereof are to be
4
redeemed, notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(c) Securities paid or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory to the
Trustee is presented that any such Securities are held by a holder in due course;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of
Securities Outstanding have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or 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 any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded (Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor), and (ii) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration pursuant
to Section 7.02 hereof.
Overdue Rate
when used with respect to the Securities of any series means the rate
designated as such, established as contemplated by Section 3.01 for the Securities of such series.
Paying Agent
means any Person authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
Person
means any individual, corporation, partnership, limited liability company, joint
venture, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Place of Payment
when used with respect to the Securities of any series means the place or
places where the principal of (and premium, if any) and interest, if any, on the Securities of such
series are specified as payable, established as contemplated by Section 3.01 or, if not so
established, specified in Section 12.02.
Predecessor Securities
of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security; and for the
purposes of this definition, any Security authenticated and delivered under Section 3.06 hereof in
lieu of a mutilated, lost, destroyed or stolen Security shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen Security.
record date
: See Section 3.08 hereof.
Redemption Date
when used with respect to any Security or portion thereof to be redeemed
means the date fixed for such redemption pursuant hereto.
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Redemption Price
when used with respect to any Security or portion thereof to be redeemed on
any Redemption Date means the price at which it is to be so redeemed, established as contemplated
by Section 3.01 exclusive of interest accrued and unpaid to such Redemption Date.
Responsible Officer
when used with respect to the Trustee means any officer of the Trustee
authorized by the Trustee to administer its corporate trust matters.
Securities
: See RECITALS OF THE COMPANY herein.
Securities Register
and
Securities Registrar
: See Section 3.05 hereof.
Stated Maturity
when used with respect to any Security or any installment of interest
thereon means the date specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
Subsidiary
of any Person means (i) any corporation of which such Person at the time owns or
controls, directly or through an intervening medium, more than fifty per cent (50%) of each class
of outstanding Voting Stock, (ii) any limited liability company, general partnership, joint
venture, joint stock company or similar entity, of which such Person at the time owns or controls,
directly or through an intervening medium, more than fifty per cent (50%) of its outstanding
partnership, membership or similar voting interests, as the case may be and (iii) any limited
partnership of which such Person, directly or through an intervening medium, is a general partner,
and unless otherwise specified shall mean a Subsidiary of the Company.
Trustee
means the Person named as the
Trustee
in the first paragraph of this instrument
and, subject to the provisions of Article Eight hereof, shall also include its successors and
assigns as Trustee hereunder. If there shall be at any one time more than one Trustee hereunder,
Trustee
shall mean each such Trustee and shall apply to each such Trustee only with respect to
the Securities of those series with respect to which it is serving as Trustee.
Trust Indenture Act
and
TIA
means the Trust Indenture Act of 1939, as amended and as in
force at the date as of which this instrument was executed, except as provided in Section 11.06
hereof.
U.S. Government Obligations
means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and which shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such obligation set forth in (i) or (ii)
above or a specific payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
obligation evidenced by such depository receipt or the specific payment of interest on or principal
of such obligation.
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Vice President
when used with respect to the Company means any vice president, whether or
not designated by a number or a word or words added before or after the title
vice president
.
Voting Stock
means stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
Section 1.02
Compliance Certificates and Opinions
. Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers Certificate stating that all conditions precedent (including any
covenant compliance with which constitutes a condition 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:
(a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 1.03
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
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opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Company, unless such Officer or counsel,
as the case may be, knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which his or her
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated to form one instrument.
Section 1.04
Act of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the
Act
of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 8.01 hereof) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this Section
1.04.
(b) The fact and date of the execution by any Person of any such instrument or writing,
or the authority of the Person executing the same, may be proved in any manner that the
Trustee deems sufficient and in accordance with such reasonable requirements as the Trustee
may determine.
(c) The ownership of Securities of any series shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company or any
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agent of the
Trustee or the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent or take any other action under this Indenture, which
record date shall not be more than 60 days nor less than 10 days prior to the solicitation
with respect thereto, and only such Holders shall be so entitled.
Section 1.05
Notices, etc., to Trustee and Company
. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (except as provided in Subsection (d) of Section 7.01 hereof) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it 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 1.06
Notice to Holders; Waiver
. Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Securities Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice mailed in the manner prescribed by this Indenture shall be deemed to have been
given whether or not such Holder receives said notice. 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.
Section 1.07
Immunity of Incorporator, Stockholders, Officers and Directors
. No recourse shall be
had for the payment of the principal of (and premium, if any) or the interest, if any, on any
Security of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer
or director, as such, past, present or future of the Company or of any successor corporation,
either directly or indirectly through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all the Securities are
solely corporate obligations, and that no personal liability whatever shall attach to, or is
incurred by, any incorporator, stockholder, officer or director, past, present or future, of the
Company or of any successor corporation, either directly or indirectly through the Company or any
successor
9
corporation, because of the incurring of the indebtedness hereby authorized or under or
by reason of any of the obligations, covenants or agreements contained in this Indenture or in any
of the Securities, or to be implied herefrom or therefrom; and that all such personal liability is
hereby expressly released and waived as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Securities.
Section 1.08
Conflict with Trust Indenture Act
. If any provision hereof limits, qualifies or
conflicts with any provision deemed to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such deemed-included provision shall control.
Section 1.09
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 1.10
Successors and Assigns
. All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.11
Separability Clause
. In case any provision in this Indenture or in any Securities
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof or of any Securities shall not in any way be affected or impaired
thereby.
Section 1.12
Benefits of Indenture
. Nothing in this Indenture or in the Securities, expressed or
implied, shall give to any Person, other than the parties hereto and their successors hereunder,
and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.13
Governing Law
. This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York and this Indenture and each Security for all purposes shall
be governed by and construed in accordance with the laws of the State of New York.
Section 1.14
Cross References
. All references herein to Articles and other subdivisions are to
the corresponding Articles or other subdivisions of this Indenture; and the words herein hereof
hereby hereunder hereinbefore and hereinafter and other words of similar purport refer to
this Indenture generally and not to any particular Article, Section or other subdivision hereof.
Section 1.15
Counterparts
. This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but one and the same
instrument.
Section 1.16
Legal Holidays
. In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of a Security of any series is not a Business Day at the relevant Place of Payment
with respect to Securities of such series, then notwithstanding any other provision of this
Indenture or the Securities, payment of interest, if any, or principal and premium, if any, with
respect to such Security 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
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the same force and effect as if made
on such Interest Payment Date or Redemption Date or at the Stated Maturity, and no interest shall
accrue on such payment for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
Section 1.17
Securities in Foreign Currencies
. Whenever this Indenture provides for any action by,
or any distribution to, Holders of Securities denominated in Dollars and in any Foreign Currency,
in the absence of any provision to the contrary established as contemplated by Section 3.01 for the
Securities of any particular series, any amount in respect of any Security denominated in a Foreign
Currency shall be treated for any such action or distribution as that amount of Dollars that could
be obtained for such amount on such reasonable basis of exchange and as of such date as the Company
may specify in a Company Order.
ARTICLE TWO
SECURITY FORMS
Section 2.01
Forms Generally
. The Securities of each series shall be in substantially the forms as
shall be established by or pursuant to Board Resolution or one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture supplemental hereto, 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 any law or with any rules made pursuant thereto or
with any rules of any securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities of each series shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.02
Form of Certificate of Authentication
. The Certificate of Authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
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U.S. Bank National Association,
as Trustee
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[Authorized Officer]
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or
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[As Authenticating Agent]
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Section 2.03
Securities in Global Form
. If any Security of a series is issuable as a Global
Security (in whole or in part), such Global Security may provide that it shall represent the
aggregate principal amount of Outstanding Securities of such series from time to time represented
thereby in the records of the Trustee or endorsed thereon and may also provide that the aggregate
principal amount of Outstanding Securities of such series represented thereby in the records of the
Trustee or endorsed thereon may from time to time be reduced or increased. Any change in the
records of the Trustee or any endorsement of a Global Security to reflect the aggregate principal
amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in accordance with provisions established as contemplated by Section
3.01.
ARTICLE THREE
THE SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series
. The aggregate principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or one or more indentures supplemental hereto, prior to the issuance of any
Securities of any series:
(a) the title of the Securities of such series (which shall distinguish the Securities
of such series from all other series of Securities);
(b) any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered pursuant to Section 3.05, 3.06, 3.07, 4.07, or 11.07 hereof);
(c) the date or dates, or the method by which such date or dates will be determined or
extended, on which the principal of and premium, if any, on the Securities of such series is
payable;
(d) the Persons to whom interest on Securities of such series shall be payable, if
other than the Persons in whose names such Securities are registered at the close of
business on the record date for such interest;
(e) the rate or rates, or the method to be used in determining the rate or rates, at
which the Securities of such series shall bear interest, if any, the date or dates from
which such interest shall accrue or the method by which such date or dates shall be
12
determined, the Interest Payment Dates on which such interest shall be payable and, if other
than as set forth in Section 3.08 hereof, the record date for the determination of Holders
to whom such interest is payable, and the basis upon which Interest shall be calculated if
other than as set forth in Section 3.11;
(f) the circumstances, if any, in which principal, premium, if any, or interest on such
debt security may be deferred;
(g) the place or places at which (i) the principal of and premium, if any, and
interest, if any, on Securities of such series shall be payable if other than as set forth
in the third sentence of Section 12.02, (ii) registration of transfer of Securities of such
series may be effected, (iii) exchanges of Securities of such series may be effected and
(iv) notice and demands to or upon the Company in respect of the Securities of such series
and this Indenture may be served; and if such is the case, that the principal of such
Securities shall be payable without the presentment or surrender thereof;
(h) any optional redemption or repayment provisions;
(i) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of such series may be redeemed, in whole or in part, at the
option of the Company, at the option of a Holder or otherwise;
(j) the obligation, if any, of the Company to redeem, purchase or repay Securities of
such series pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which, the period or periods within which and the
terms and conditions upon which Securities of such series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(k) if other than Dollars, the Foreign Currency or Foreign Currencies in which payment
of the principal of and premium, if any, and interest, if any, on the Securities of such
series shall be payable or in which such Securities will be denominated;
(l) if the principal of and premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder thereof, in a coin
or currency (including a composite currency) other than that in which such Securities are
stated to be payable, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(m) if denominated or payable in any coin or currency, including composite currencies,
other than Dollars, or if the terms of the Securities provide that the principal amount
thereof payable at maturity may be more or less than the principal face amount thereof at
original issuance, the method by which the Securities of such series shall be valued, which
may be any reasonable method, against the Securities of all other series for voting, the
giving of any request, demand, authorization, direction, notice, consent or waiver,
distribution and all other purposes hereof and any provisions required for purposes of
applying Sections 6.01 and 6.02 hereof;
13
(n) if the amount of payments of principal of and premium, if any, or interest, if any,
on the Securities of such series may be determined with reference to an index, the formula
or other method (which may be based on one or more currencies (including a composite
currency), commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(o) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of such series shall be issuable;
(p) if other than the principal amount thereof, the portion of the principal amount of
Securities of such series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 hereof or the method by which such portion shall
be determined;
(q) any addition to, or modification or deletion of, any Event of Default or any
covenant of the Company specified herein with respect to the Securities of such series;
(r) if other than the rate of interest stated in the title of the Securities of such
series, the applicable Overdue Rate;
(s) if the Securities of such series do not bear interest, the applicable dates for
purposes of Section 9.01 hereof,
(t) the inapplicability to the Securities of such series of Section 6.02 relating to
satisfaction, discharge and defeasance of Securities or, if applicable, any modification to
Section 6.02 with respect to the Securities of such series;
(u) if other than U.S. Bank National Association is to act as Trustee for the
Securities of such series, the name and Corporate Trust Office of such Trustee;
(v) whether the Securities of such series shall be issued in whole or in part in the
form of a Global Security or Securities and, in such case the terms and conditions, if any,
upon which such Global Security or Securities may be exchanged in whole or in part for other
definitive Securities, the Depositary for such Global Security or Securities (which shall be
a clearing agency registered under the Exchange Act, or any other applicable statute or
regulation, to the extent required thereunder), whether such Global Security shall be
permanent or temporary, any limitations on the rights of the Holder or Holders to transfer
or exchange the same or to obtain the registration of transfer thereof in addition to or in
lieu of those set forth in Section 3.05, any limitations on the rights of the Holder or
Holders thereof to obtain certificates in definitive form, and, the provisions for
determining the aggregate principal amount of Outstanding Securities from time to time
represented thereby and any and all matters incidental to such Global Security or
Securities;
(w) if the Securities of such series may be converted into or exchanged for other
securities of the Company or any other Persons, the terms and conditions pursuant to which
the Securities of such series may be converted or exchanged;
14
(x) if the principal of or premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or other property, or
the method by which such amount shall be determined, and the periods within which, and the
terms and conditions upon which, any such election may be made;
(y) if the Securities of any such series are to be issued as certificated debt
securities in bearer form, to be issued outside the United States to non-U.S. persons, and,
any and all matters incidental thereto;
(z) if the Securities of such series are to be issued upon the exercise of a warrant or
right, the time, manner and place for such Securities to be authenticated and delivered; and
(aa) any other terms of the Securities of such series (which terms shall conform to any
applicable requirements of the TIA, and shall not materially adversely affect the rights of
the Holders of Securities of such series then outstanding).
All Securities of any one series shall be substantially identical except as to principal
amount and except as may otherwise be established as contemplated by this Section 3.01.
Section 3.02
Denominations
. Unless otherwise established as contemplated by Section 3.01, the Securities of each series
shall be issuable only in registered form without coupons in such denominations as shall be
established as contemplated by Section 3.01 or in the absence thereof, in denominations of $1,000
and any integral multiple thereof.
Section 3.03
Authentication and Dating
. At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this Article, the
Trustee shall thereupon authenticate and deliver, or cause to be authenticated and delivered, said
Securities pursuant to a Company Order, which shall specify the principal amount, registered holder
and delivery instructions for each such Security. In authenticating (or causing authentication of)
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, prior to the authentication of such
Securities, and (subject to Sections 8.01 and 8.03 hereof) shall be fully protected in relying
upon:
(a) a Board Resolution relating thereto and, if applicable, an appropriate record of
any action taken pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any, relating thereto;
(c) an Officers Certificate setting forth the form and terms of the Securities of such
series as established as contemplated by Sections 2.01 and 3.01 hereof (to the extent not
set forth in the documents delivered pursuant to Subsection 3.03(a) or 3.03(b)) and stating
that all conditions precedent provided for in this Indenture relating to the
15
issuance of
such Securities have been complied with, that no Event of Default with respect to the
Securities of any Series has occurred and is continuing and that the issuance of such
Securities is not and will not result in (i) an Event of Default or an event or condition
which, upon the giving of notice or the lapse of time or both, would become an Event of
Default or (ii) a default under the provisions of any other instrument or agreement by which
the Company is bound; and
(d) an Opinion of Counsel stating that the form and terms of such Securities have been
established as contemplated by Sections 2.01 and 3.01 in conformity with the provisions of
this Indenture.
The Trustee shall have the right to decline to authenticate and deliver, or cause to be
authenticated and delivered, any Securities under this Section 3.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith
shall determine that such action would expose the Trustee to personal liability to existing Holders
or would otherwise adversely affect its rights, duties, obligations or immunities hereunder.
Unless otherwise provided in the form of Securities of any particular series, each Security
shall be dated the date of its authentication.
Section 3.04
Execution of Securities
. The Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signatures of its Chairman of the Board, Chief Executive
Officer, its President, any one of its Senior Executive Vice Presidents, any one of its Executive
Vice Presidents, any one of its Senior Vice Presidents or any one of its Vice Presidents, under its
corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or
otherwise) and attested to by its Secretary or any one of its Assistant Secretaries, whose
signatures may be manual or facsimile. Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by or on behalf of the
Trustee by manual signature, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by or on behalf of the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Securities so signed shall have been authenticated and delivered by or
on behalf of the Trustee, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such Securities had not
ceased to be such officer of the Company; and any Security may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Security, shall be the proper
officers of the Company, although at the date of the execution of this Indenture any such person
was not such an officer.
Section 3.05
Exchange and Registration of Transfer of Securities
. Securities of any series (except
for Global Securities, which may only be exchanged in limited circumstances described below) may be
exchanged for a like aggregate principal amount of Securities of the
16
same series of other
authorized denominations. Unless otherwise established as contemplated by Section 3.01, Securities
to be exchanged shall be surrendered at any of the offices or agencies of the Company maintained as
provided in Section 12.02 hereof for such purpose, and the Company shall execute and register, or
cause to be registered, and the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, in exchange therefor the Security or Securities which the Holder
making such exchange shall be entitled to receive.
Unless otherwise established as contemplated by Section 3.01, the Company shall keep at the
office or agency in the same city in which the Corporate Trust Office of the Trustee is located, a
register for the Securities of each series issued hereunder (the register maintained at such office
or agency and at any other office or agency of the Company in a Place of Payment being herein
collectively referred to as the
Securities Register
) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities of
such series and registration of transfer of such Securities as provided in this Article. Such
Securities Register shall be in written form or in any other form capable of being converted into
written form within a reasonable time. The Trustee is hereby initially appointed Securities
Registrar for the purpose of registering Securities and registering transfers of Securities as
herein provided. Upon due presentment for registration of transfer of any Security of any series
at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof
for such purpose, the Company shall execute and register, or cause to be registered, and the
Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in the name of
the transferee or transferees a new Security or Securities of the same series in authorized
denominations for an equal aggregate principal amount.
Every Security issued upon registration of transfer or exchange of Securities pursuant to this
Section 3.05 shall be the valid obligation of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Security or Securities surrendered upon
registration of such transfer or exchange.
All Securities presented for registration of transfer or for exchange, redemption or payment
shall (if so required by the Company, the Trustee or the Securities Registrar) be duly endorsed by,
or be accompanied by, a written instrument or instruments of transfer in form satisfactory to the
Company, the Trustee and the Securities Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.07, 4.07 or 11.07 hereof not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of or exchange any
Security of any series during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of such series and ending at the close of
business on the day of such mailing or (b) to register the transfer of or exchange any Security
selected for redemption in whole or in part, except, in the case of any Security to be redeemed in
part, the portion thereof not to be redeemed.
17
Each Global Security authenticated under this Indenture shall be registered in the name of the
Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise
specified as contemplated by Section 3.01, no Global Security shall be registered for transfer or
exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07
or 11.07 in the name of a Person other than the Depositary for such Security or its nominee until
(i) the Depositary with respect to a Global Security notifies the Company in writing that it is
unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act or other applicable statute or regulation if
required thereunder, and the Company notifies the Trustee that it is unable to locate a qualified
successor Depositary, (ii) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable and exchangeable or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Securities of such Series. Upon the
occurrence in respect of any Global Security of any series of any one or more of the conditions
specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may
be specified as contemplated by Section 3.01 for such series, such Global Security may be
registered for transfer or exchange for Securities registered in the names of, or
authenticated and delivered to, such Persons as the Depositary with respect to such series
shall instruct the Trustee in writing. The Trustee, upon receipt of such instruction, will
authenticate and deliver Securities of such series of like tenor and terms 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.
Except as provided in the preceding paragraph, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global Security or any portion
thereof, whether pursuant to this Section 3.05, Section 3.06, 3.07, 4.07 or 11.07 or otherwise,
shall also be a Global Security. Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or to another Depositary or a nominee thereof or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or to another Depositary or a
nominee thereof.
Upon such terms established as contemplated by Section 3.01 with respect to the Securities of
any series, the Depositary for the Securities of such series may surrender a Global Security for
such series in exchange in whole or in part for Securities of such series of like tenor and terms
and in definitive form. Thereupon the Company shall execute, and the Trustee upon receipt of a
Company Order shall authenticate and deliver, without service charge, (i) to the Depositary or to
each Person specified by such Depositary a new Security or Securities of the same series, of like
tenor and terms in definitive form and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Persons beneficial interest in the
Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a
principal amount equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered pursuant to clause (i).
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Upon the exchange of a Global Security for Securities in definitive form, such Global Security
shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security
pursuant to this Section shall either be in global form, established as contemplated by Sections
2.01 and 3.01, or shall be registered in such names and in such authorized denominations and
delivered to the Depositary or to such Persons at such addresses as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing.
Section 3.06
Mutilated, Destroyed, Lost or Stolen Securities
. In case any temporary or definitive
Security of any series shall become mutilated or be destroyed, lost or stolen, and in the absence
of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company in the case of a mutilated Security shall, and in the case of a lost, stolen
or destroyed Security may in its discretion, execute, and upon a Company Request the Trustee shall
authenticate and deliver, or cause to be authenticated and delivered, a new Security of the same
series bearing a number, letter or other distinguishing symbol not contemporaneously outstanding,
in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen, or if any such Security shall have become due and payable or
shall be about to become due and
payable, instead of issuing a substituted Security, the Company may pay or authorize the payment of
the same without surrender thereof (except in the case of a mutilated Security). In every case the
applicant for a substituted Security shall furnish to the Company and to the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Upon the issuance of any substituted Security under this Section 3.06, 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 any
Authenticating Agent) connected therewith.
Every substituted Security of any series issued pursuant to the provisions of this Section
3.06 by virtue of the fact that any Security of such series is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions of this Section 3.06 are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude (to the extent
lawful) any and all other rights or remedies with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 3.07
Temporary Securities
. Pending the preparation of definitive Securities of any series
the Company may execute and the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, temporary Securities of such series (printed, lithographed,
typewritten, mimeographed or otherwise produced). Temporary Securities shall be issuable in any
authorized denomination and substantially in the form of the definitive Securities
19
in lieu of which
they are issued but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Company with the concurrence of the Trustee.
Every such temporary Security shall be executed by the Company and shall be authenticated by or on
behalf of Trustee upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Securities in lieu of which they are issued. Without unreasonable delay
the Company will execute and deliver to the Trustee definitive Securities of such series and
thereupon any or all temporary Securities of such series may be surrendered in exchange therefor,
at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for
such purpose, and the Trustee shall authenticate and deliver, or cause to be authenticated and
delivered, in exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of such series. Such exchange shall be made by the Company at its own
expense and without any charge therefor except that in case of any such exchange involving any
registration of transfer the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Notwithstanding the foregoing provisions of this Section 3.07, Global Securities may remain in
temporary form and, unless otherwise established as contemplated by Section 3.01, shall not be
exchangeable for definitive Global Securities.
Section 3.08
Payment of Interest; Interest Rights Preserved
. The Holder at the close of business
on any record date with respect to any Interest Payment Date shall be entitled to receive the
interest, if any, payable on such Interest Payment Date notwithstanding the cancellation of such
Securities upon any transfer or exchange subsequent to the record date and prior to such Interest
Payment Date. Except as otherwise established as contemplated by Section 3.01 for Securities of a
particular series, the term record date as used in this Section 3.08 with respect to any Interest
Payment Date, shall mean the last day of the calendar month preceding such Interest Payment Date if
such Interest Payment Date is the fifteenth day of the calendar month, and shall mean the fifteenth
day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the
first day of the calendar month, whether or not such day shall be a Business Day.
If and to the extent the Company shall default in the payment of the interest due on such
Interest Payment Date, such defaulted interest (herein called
Defaulted Interest
) shall forthwith
cease to be payable to the registered Holder on such record date by virtue of having been such
Holder; and such Defaulted Interest shall be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:
(a) The Company may make payment of any Defaulted Interest to the Holders entitled
thereto at the close of business on a subsequent record date established in the following
manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each applicable Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust
20
for the benefit of the Holders
entitled to such Defaulted Interest as in this clause (a) provided. Thereupon the Trustee
shall fix a record date for the payment of such Defaulted Interest which shall not be 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 record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the record date therefor to be mailed, first-class postage prepaid, to each
Holder entitled thereto at his address as it appears on the Securities Register, not less
than 10 days prior to such record date. Notice of the proposed payment of such Defaulted
Interest and the record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Holders of applicable Securities at the close of business on
such record date (notwithstanding the cancellation of such Securities upon any transfer or
exchange subsequent to such record date and prior to such payment) and shall no longer be
payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of such series 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 (b), such manner of payment shall be deemed
practicable by the Trustee. Subject to the foregoing provisions of this Section 3.08, each
Security delivered under this Indenture upon registration of transfer of or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Security.
Section 3.09
Persons Deemed Owners
. Prior to the due presentment for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of receiving payment of
principal of and premium, if any and (subject to Section 3.08 hereof) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such 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.
None of the Company, the Trustee, any Paying Agent or the Securities Registrar shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests and they shall be protected in acting
or refraining from acting on any such information provided by the Depositary.
Section 3.10
Cancellation
. All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer or for credit against any sinking fund shall, if surrendered
to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Trustee and
promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and
no Securities shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy cancelled
21
Securities and deliver a
certificate of such destruction to the Company unless, by a Company Order, the Company directs that
such cancelled Securities be returned to it. If the Company shall acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the Trustee for
cancellation.
Section 3.11
Computation of Interest
. Except as otherwise established as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 4.01
Applicability of Article
. The provisions of this Article shall be applicable to all
Securities which are redeemable before their Stated Maturity except as otherwise established as
contemplated by Section 3.01 hereof for Securities of any series.
Section 4.02
Election to Redeem; Notice to Trustee
. The election of the Company to redeem any
Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the Securities of a series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee) deliver to the Trustee an Officers Certificate
setting forth such Redemption Date and the principal amount of Securities of such series to be
redeemed and stating that no default in payment of interest or Event of Default has occurred and is
continuing with respect to the Securities of such series.
Section 4.03
Selection by Trustee of Securities to Be Redeemed
. If less than all the Securities of
any series are to be redeemed, the particular Securities of such series to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate (which is in compliance with the requirements of any national securities
exchange on which such Securities are listed) and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for Securities of such series
or any integral multiple thereof) of the principal of Securities of a denomination greater than the
minimum authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security 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 Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed, whether or not such provisions so provide.
22
Section 4.04
Notice of Redemption
. Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the Securities Register.
Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, and accrued interest, if any,
(c) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Securities of such series to be redeemed,
(d) that on the Redemption Date the Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due and payable upon each such Security, and
that interest thereon shall cease to accrue from and after said date,
(e) the place where such Securities are to be surrendered for payment of the Redemption
Price, and accrued interest, if any, and
(f) that the redemption is for a sinking fund, if that be the case.
Notice of redemption of the Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request made at least 35 days period to the redemption
date, by the Trustee in the name and at the expense of the Company upon Trustees receipt from the
Company of the form of such notice containing the information required under Section 4.04 above.
Section 4.05
Deposit of Redemption Price
. On or before 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 12.03 hereof) an amount of money
sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities or
portions thereof which are to be redeemed on that date.
Section 4.06
Securities Payable on Redemption Date
. Notice of redemption having been given as
aforesaid, the Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price thereof together with accrued interest, if any,
thereon to the Redemption Date, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and such accrued interest, if any) such Securities or portions
thereof shall cease to bear interest. Upon surrender of such Securities for redemption in
accordance with said notice such Securities or specified portions thereof shall be paid by the
Company at the Redemption Price, together with any accrued interest to the Redemption Date.
Installments of interest whose Stated Maturity is on or prior to the
23
Redemption Date shall be
payable to the Holders of such Securities registered as such on the relevant record dates according
to their terms and the provisions of Section 3.08 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof on such
Redemption Date, the principal and premium, if any, shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
Section 4.07
Securities Redeemed in Part
. Security of any series which is to be redeemed only in
part shall be surrendered at the Place of Payment (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver, or cause to be authenticated
and delivered, to the Holder of such Security without service charge, a new Security or Securities
of the same series of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal amount of the
Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
Section 5.01
Applicability of Article
. The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities except as otherwise established as contemplated by
Section 3.01 for Securities of any series.
The minimum amount of any sinking fund payment established as contemplated by Section 3.01 for
Securities of any series is herein referred to as a mandatory sinking fund payment, and any
permitted payment in excess of such minimum amount established as contemplated by Section 3.01 for
Securities of any series is herein referred to as an optional sinking fund payment.
Section 5.02
Satisfaction of Mandatory Sinking Fund Payments with Securities
. In lieu of making
all or any part of any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (a) deliver to the Trustee Securities of that series
theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal
amount of Securities of that series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities;
provided
that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption through operation of
the sinking fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
Section 5.03
Redemption of Securities for Sinking Fund
. Not less than 60 days prior to each
sinking fund payment date for the Securities of any series, the Company will deliver to the Trustee
a certificate signed by the Treasurer or any Assistant
Treasurer of the Company specifying the amount of such next ensuing mandatory sinking fund payment,
the
24
portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities of such series pursuant to
Section 5.02 (which Securities will accompany such certificate) and whether the Company intends to
make any permitted optional sinking fund payment in connection therewith. Such certificate shall
also state that no Event of Default has occurred and is continuing with respect to Securities of
such series. Such certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the Company to deliver such
certificate when due (or to deliver the Securities specified in this Section 5.03) the sinking fund
payment due on the next succeeding sinking fund payment date for Securities of that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or credit Securities as
provided in Section 5.02 and without the right to make any optional sinking fund payment, in
connection therewith.
Any sinking fund payment or payments (mandatory or optional) with respect to the Securities of
any particular series made in cash plus any unused balance of any preceding sinking fund payments
with respect to Securities of such series made in cash which shall equal or exceed $100,000 or the
equivalent thereof in the Foreign Currency in which such series is denominated (or a lesser sum if
the Company shall so request) shall be applied by the Trustee on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption of such Securities
at the Redemption Price specified in such Securities for operation of the sinking fund together
with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so
applied or allocated by the Trustee to the redemption of such Securities shall be added to the next
cash sinking fund payment received by the Trustee for Securities of such series and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.03. Any and all
sinking fund moneys with respect to the Securities of any particular series held by the Trustee on
the last sinking fund payment date with respect to Securities of such series and not held for the
payment or redemption of particular Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal
of the Securities of such series at Maturity.
The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in the first paragraph of Section 4.03 hereof and the Company shall cause
notice of the redemption thereof to be given in the manner provided in Section 4.04 hereof. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 4.06 and 4.07 hereof.
On or before any sinking fund payment date, the Company shall deposit with the Trustee an
amount of money sufficient to pay any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 5.03.
The Trustee shall not redeem any Securities of any series with sinking fund moneys or mail any
notice of redemption of Securities of such series by operation of the sinking
25
fund therefor during
the continuance of a default in payment of interest on Securities of such series or of any Event of
Default (other than an Event of Default occurring as a consequence of this paragraph) with respect
to Securities of such series, except that if the notice of redemption of any Securities of such
series shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article. Except as aforesaid, any
moneys in the sinking fund for Securities of such series at the time when any such default or Event
of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such Event of Default or default shall have been cured
or waived as, provided herein, such moneys shall thereafter be applied on the next sinking fund
payment date for such Securities on which such moneys may be applied pursuant to the provisions of
this Section 5.03.
ARTICLE SIX
SATISFACTION AND DISCHARGE
Section 6.01
Satisfaction and Discharge of Indenture
. This Indenture shall cease to be of further
effect with respect to the Securities of any series (except as to the rights of Holders of
Outstanding Securities of such series to receive, from the trust funds described in paragraph (a)
of this Section 6.01, payment of the principal of, premium, if any, and interest, if any, on such
Outstanding Securities on the Stated Maturity of such principal, premium, if any, or installment of
interest, if any, the Companys obligations with respect to such Outstanding Securities of such
series under Sections 3.05, 3.06, 6.05 and 12.02 as may be applicable to Outstanding Securities of
such series, and the rights, powers, trusts, duties, indemnities and immunities of the Trustee
hereunder), and the Trustee for the Securities of such series, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Securities of such series, when
(a) either
(i) all the Securities of such series theretofore authenticated and
delivered (other than (A) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06 hereof and (B) Securities of such series for whose payment
money has theretofore been deposited with the Trustee or the Paying Agent
for the Securities of such series 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 6.05 hereof) have been delivered to such
Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to such
Trustee for cancellation
(A) have become due and payable, or
26
(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to such Trustee for the giving of notice
of redemption by such Trustee in the name, and at the expense, of
the Company,
and the Company has deposited or caused to be deposited with such Trustee
irrevocably as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of all Outstanding Securities of
such series, with reference to this Section 6.01, (i) money in an amount in the
currency in which the Securities of such series are denominated or (ii) U.S.
Government Obligations in the case of Securities denominated in Dollars or
obligations issued or guaranteed by the government which issued the currency in
which the Securities of such series are denominated in the case of Securities
denominated in Foreign Currencies, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide, not later
than the opening of business on the due date of any payment referred to below, money
in an amount in the currency in which the Securities of such series are denominated,
or (iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on all Outstanding Securities of such series not theretofore delivered
to such Trustee for cancellation, for principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities of such series which
have become due and payable), or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company in connection with Outstanding Securities of such series, including all fees and
expenses of the Trustee for such series; and
(c) the Company has delivered to such 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 with respect to the
Securities of any series, the obligations of the Company with respect to Securities of any other
series and to the Trustee for the Securities of such series under Section 8.07 hereof shall
survive.
Section 6.02
Satisfaction, Discharge and Defeasance of Securities of any Series
. Unless otherwise established, as contemplated by Section 3.01, with respect to Securities of any
series, the Company shall, notwithstanding Section 6.01, be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any such series from and after the
ninety-first day after the date of the deposit referred to in paragraph (a) below, the provisions
of
27
this Indenture (except as to the rights of Holders of Outstanding Securities of such series to
receive, from the trust funds described in paragraph (a) below, payment of the principal of,
premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of
such principal, premium, if any, or installment of interest, if any, the Companys obligations with
respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as
may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder) shall no longer be in effect in respect of
Outstanding Securities of such series, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such indebtedness;
provided
that the following conditions shall have been satisfied:
(a) the Company has deposited or caused to be deposited with the Trustee irrevocably as
trust funds in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of all Outstanding Securities of such series, with reference to this
Section 6.02, (i) money in an amount in the currency in which the Securities of such series
are denominated or (ii) U.S. Government Obligations in the case of Securities denominated in
Dollars or obligations issued or guaranteed by the government which issued the currency in
which the Securities are denominated in the case of Securities denominated in Foreign
Currencies, which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than the opening of business on the due
date of any payment referred to in this paragraph (a), money in an amount in the currency in
which the Securities of such series are denominated, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge
the entire indebtedness on all Outstanding Securities of such series for principal, premium,
if any, and interest, if any, to the Stated Maturity as such principal, premium, if any, or
interest, if any, becomes due and payable in accordance with the term of this Indenture and
the Securities of such series;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company in connection with the Outstanding Securities of such series, including all fees and
expenses of the Trustee for such series; and
(c) 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 on all Outstanding Securities of such
series have been complied with.
Section 6.03
Application of Trust Money
. (a) Subject to the provisions of Section 6.05, all
money, U.S. Government Obligations and other government obligations deposited with the Trustee for
the Securities of any series pursuant
to Section 6.01 or 6.02, and all money received by the Trustee in respect of U.S. Government
Obligations and such other government obligations deposited with the Trustee for the Securities of
any series pursuant to Section 6.01 or 6.02 shall be held in trust and applied by it, in accordance
with the provisions of the Securities of such series 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
28
determine, to the Persons entitled thereto, of the principal of, premium, if any, and
interest, if any, on the Securities of such series; but such money need not be segregated from
other funds except to the extent required by law and the Trustee shall have no liability to pay
interest thereon or for the investment thereof.
(b) The Trustee shall deliver or pay to the Company from time to time upon Company
request any U.S. Government Obligations, other government obligations or money held by it as
provided in Sections 6.01 and 6.02 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government Obligations, other government
obligations or money were deposited or received.
Section 6.04
Paying Agent to Repay Moneys Held
. Upon the satisfaction and discharge of this
Indenture all moneys then held by any Paying Agent under the provisions of this Indenture shall,
upon demand of the Company, be repaid to it or paid to the appropriate Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to such moneys.
Section 6.05
Return of Unclaimed Moneys
. Any moneys deposited with or paid to the Trustee or any
Paying Agent for the Securities of any series pursuant to this Article, or then held by the
Company, in trust for the payment of the principal of and premium, if any, or interest, if any, on
Securities of such series and not applied but remaining unclaimed by the Holders of Securities of
such series for two years after the date upon which the principal of and premium, if any, or
interest, if any, on such Securities, as the case may be, shall have become due and payable, shall,
unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Company by such Trustee or any Paying Agent on demand or (if then
held by the Company) shall be discharged from such trust; and the Holder of any such Securities
entitled to receive such payment shall thereafter look only to the Company for the payment thereof;
provided
,
however
, that, before being required to make any such repayment, such Trustee may (at the
expense of the Company) cause to be published once a week for two successive weeks, in each case on
any day of the week, in an Authorized Newspaper in the same city in which the Place of Payment with
respect to Securities of such series shall be located and in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, a notice (in such form as may be deemed appropriate by such
Trustee) that said moneys remain unclaimed and that, after a date named therein, any unclaimed
balance of said moneys then remaining will be returned to the Company.
ARTICLE SEVEN
REMEDIES
Section 7.01
Events of Default
. Event of Default whenever used herein with respect to Securities
of any series means any one of the following events and such other events as may be established
with respect to the Securities of such series as contemplated by Section 3.01 hereof, continued for
the period of time, if any, and after the giving of notice, if any,
29
designated herein or therein,
as the case may be, unless the same is either not applicable to the Securities of such series or is
deleted or modified in the terms of the Securities of such series established as contemplated by
Section 3.01 hereof:
(a) default in the payment of any interest upon any Security of such series when the
same becomes 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
(b) default in the payment of all or any part of the principal of (or premium, if any,
on) any Security of such series at its Maturity; or
(c) default in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due and payable by the terms of the Securities of such
series; or
(d) default in the performance, or breach, of any covenant or warranty of the Company
in respect of the Securities of such series contained in this Indenture or in such
Securities (other than a covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section 7.01 specifically
dealt with) or established as contemplated by Section 3.01 hereof for the Securities of such
series, and continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee for the
Securities of such series, or to the Company and such Trustee by the Holders of at least 25%
in principal amount of the Outstanding 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; or
(e) the entry of a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under Title II of the United States Code as now constituted or hereafter amended
(the
Federal Bankruptcy Code
) or any other applicable Federal or State law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or
the consent by it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability
30
to pay its debts generally
as they become due, or the taking of corporate action by the Company in furtherance of any
such action; or
(g) any other Event of Default established as contemplated by Section 3.01 hereof for
Securities of such series.
Section 7.02
Acceleration of Maturity; Rescission and Annulment
. If an Event of Default with
respect to Securities of any series at the time outstanding occurs and is continuing, then and in
each and every such case, unless the principal of all of the Securities of such series shall have
already become due and payable, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such series may declare the principal amount (or,
if the 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 all the 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 Holders), and upon any such declaration of acceleration the same shall become
immediately due and payable, anything in this Indenture or in the Securities of such series or any
resolution of the Board of Directors relating thereto contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained or entered as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may waive all defaults with respect to
such Securities and rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue installments of interest, if any, on all Securities of
such series;
(ii) the principal of (and premium, if any, on) any and all Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the Overdue Rate applicable to the
Securities of such series;
(iii) to the extent that payment of such interest is lawful, interest
upon any overdue installment of interest at the Overdue Rate applicable to
the Securities of such series;
(iv) 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 other amounts owing the Trustee under
Section 8.07; and
(b) all Events of Default with respect to Securities of such series, other than the
non-payment of the principal of Securities which have become due solely by such
acceleration, have been cured or waived as provided in
Section 7.13 or 12.07 hereof.
31
No such waiver and rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 7.03
Collection of Indebtedness and Suits for Enforcement by Trustee
. The Company
covenants that if
(a) default is made in the payment of any installment of interest on any Security of
any series when such interest becomes due and payable and such default continues for a
period of 30 days,
(b) default is made in the payment of all or any part of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof, or
(c) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due pursuant to the terms of the Securities of
any series established as contemplated by Section 3.01,
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holder of
any such Security (or Holders of Securities of any such series in the case of clause (c) above),
the whole amount then due and payable on any such Security (or Securities of any such series in the
case of clause (c) above) for principal, premium, if any, and interest, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of such interest shall
be legally enforceable, upon any overdue installment of interest, at the Overdue Rate of any such
Security (or Securities of any such series in the case of clause (c) above); 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 such Trustee, its
agents and counsel, and all other amounts owing the Trustee under Section 8.07.
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 or final decrees, and may
enforce the same against the Company or any other obligor upon such Securities 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 Securities, wherever situated.
If an Event of Default occurs and is continuing with respect to the Securities of any series,
the Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of the Securities of such series by such appropriate judicial
proceedings as such 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 7.04
Trustee May File Proofs of Claim
. The Trustee (irrespective of whether the principal
of the Securities of any series 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 proceeding or otherwise, in case of the pendency of any
32
receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Securities of such series
or the property of the Company or of such other obligor or their creditors,
(i) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to such series pursuant to a declaration in accordance with
Section 7.02 hereof), premium, if any, and interest, if any, owing and
unpaid in respect of the Securities of such series 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 of the Securities of such series allowed in such judicial
proceeding, and
(ii) 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, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee,
and in the event that such Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to 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 8.07 hereof.
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 Securities of any series 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 7.05
Trustee May Enforce Claims without Possession of Securities
. All rights of action and
claims under this Indenture or the Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such
series 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 Securities in respect of which such judgment has been recovered.
Section 7.06
Application of Money Collected
. Any moneys 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 (or premium, if any) or interest, if
any, upon presentation of the several Securities with respect to which such
33
moneys were collected,
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 8.07 hereof.
SECOND: To the payment of the amounts then due and unpaid upon such Securities
for principal (and premium, if any) and interest, if any, 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 Securities
for principal (and premium, if any) and interest, if any, respectively.
THIRD: The balance, if any, to the Company.
Section 7.07
Limitation on Suits
. No Holder of any Security of any series 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 other similar official), or for any other remedy
hereunder, unless
(1) an Event of Default shall have occurred and be continuing and such Holder
previously shall have given to the Trustee written notice of default with respect to
the Securities of such series and of the continuance thereof;
(2) the Holders of not less than 25% in principal amount of the Outstanding
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 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 Securities of such series;
it being understood and intended that no one or more Holders of Securities of such series 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 Holders of Securities of such
series, or to obtain or to seek to obtain priority or preference over any other 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 the Holders of the Securities of such series.
34
Section 7.08
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision of this Indenture, the Holder of a Security of any series shall
have the right which is absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Section 3.08) interest, if any, on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 7.09
Restoration of Rights and Remedies
. If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and such Holder 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 such Trustee and such Holder shall
continue as though no such proceeding had been instituted.
Section 7.10
Rights and Remedies Cumulative
. No right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of the Securities of any series 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 7.11
Delay or Omission Not Waiver
. No delay or omission of the Trustee or of the Holders
of the Securities of any series 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
such Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holders, as the case may be.
Section 7.12
Control by Holders
. The Holders of a majority in principal amount of the Outstanding
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,
provided
that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture, unduly prejudice the rights of the Holders or involve the Trustee in personal
liability, cost or expense for which it determines it has insufficient security or indemnity
(it being understood that the Trustee shall have no obligation to make any determination
with respect to such conflict, prejudice or liability), and
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 7.13
Waiver of Past Defaults
. The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
35
the Securities of
such series waive any past default hereunder and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series, or in the payment of any sinking fund installment or analogous
obligation with respect to the Securities of such series, or
(b) in respect of a covenant or provision hereof which under Article Eleven hereof
cannot be modified or amended without the consent of the Holder of each Outstanding Security
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 7.14
Undertaking for Costs
. All parties to this Indenture agree, and each Holder of a
Security 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 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 due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 7.14 shall not apply to
any suit instituted by such 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 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, if any, on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
Section 7.15
Waiver of Stay or Extension Laws
. The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE EIGHT
THE TRUSTEE
Section 8.01
Certain Duties and Responsibilities
. (a) Except during the continuance of an Event
of Default with respect to the Securities of any series,
36
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series and all other series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect to the
Securities of any series, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to the Securities of such series, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct,
except
that
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section 8.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in respect of the Securities of any
series in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of such series
pursuant to Section 7.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(iv) 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.
37
(d) 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 8.01.
Section 8.02
Notice of Defaults
. Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of the
Securities of such series, as their names and addresses appear in the Securities Register, notice
of such default hereunder with respect to the Securities of such series known to the Trustee,
unless such default shall have been cured or waived;
provided
,
however
, that, except in the case of
a default in the payment of principal of (or premium, if any) or interest, if any, on any Security
of such series, or in the payment of any sinking fund installment or analogous obligation in
respect thereof, 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 determine that the withholding of such notice is in the
interest of such Holders; and
provided
,
further
, that in the case of any default of the character
specified in Section 7.01(d) hereof no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section 8.02, the term
default
means any
event which is, or after notice or lapse of time or both would become, an Event of Default.
Section 8.03
Certain Rights of Trustee
. Subject to Section 8.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, 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, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order and any resolution of the
Board of Directors may 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 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, order or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to such Trustee
reasonable security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
38
(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 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;
(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;
(h) except with respect to Section 12.01, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to covenants contained in Article 12. In
addition, the Trustee shall not be deemed to have knowledge of an Event of Default except
(i) any default or Event of Default occurring pursuant to Sections 12.01, 7.01(a) or 7.01(b)
or (ii) any default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge; and
(i) delivery of reports, information and documents to the Trustee under Section 9.04 is
for informational purposes only and the Trustees receipt of the foregoing shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Companys compliance
with any of their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers Certificates).
Section 8.04
Not Responsible for Recitals or Issuance of Securities
. The recitals contained herein
and in the Securities, except the certificates of authentication, shall be taken as the statements
of the Company, and the Trustee and any Authenticating Agent assume no responsibility for their
correctness. The Trustee and any Authenticating Agent make no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee and any Authenticating Agent
shall not be accountable for the use or application by the Company of Securities or the proceeds
thereof.
Section 8.05
May Hold Securities
. The Trustee, any Paying Agent, Securities Registrar,
Authenticating Agent or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities of any series and may otherwise deal
with the Company with the same rights it would have if it were not Trustee, Paying Agent,
Securities Registrar, Authenticating Agent or such other agent.
Section 8.06
Money Held in Trust
. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no
liability for interest on or investment of any money received by it hereunder except as otherwise
agreed with the Company and for the sole benefit of the Company.
Section 8.07
Compensation and Reimbursement
. The Company agrees
39
(a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) 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 and of any
Authenticating Agent), except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and its agents for, and to hold them harmless against, any
loss, liability or expense arising out of or in connection with the acceptance or
administration of this trust and performance of their duties hereunder, including the costs
and expenses (including fees and disbursements of their counsel) of defending themselves
against any claim or liability in connection with the exercise or performance
of any of their powers or duties hereunder, except as to the Trustee or any agent to
the extent any such loss, liability or expense may be attributable to its own negligence or
bad faith.
As security for the performance of the obligations of the Company under this Section 8.07, the
Trustee shall have a lien prior to the Securities 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, if any, on particular Securities. The provisions of this Section 8.07 shall
survive any Trustee succession and the satisfaction and discharge of this Indenture. Trustee for
purposes of this Section 8.07 shall include any predecessor trustee but the negligence and bad
faith of any Trustee shall not affect the rights of any other Trustee under this Section 8.07.
Section 8.08
Disqualification; Conflicting Interests
. Reference is made to Section 310(b) of the
Trust Indenture Act. For purposes of Section 310(b)(l) of the Trust Indenture Act no Trustee shall
be deemed to have a conflicting interest by virtue of being Trustee for the Securities of more than
one series.
Section 8.09
Corporate Trustee Required; Different Trustees for Different Series; Eligibility
.
There shall at all times be a Trustee hereunder for the Securities of each series which shall be a
corporation organized and doing business under the laws of the United States of America or of any
State or the District of Columbia authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, and, if there is such a corporation that has a corporate
trust office in the Borough of Manhattan, The City of New York, the State of New York, or in such
other city as shall be established as contemplated by Section 3.01 with respect to the Securities
of any series that is willing to act upon reasonable and customary terms, having a corporate trust
office in the Borough of Manhattan or such other city. 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 8.09, the combined capital and surplus
of such corporation shall be deemed to be its
40
combined capital and surplus as set forth in its most
recent report of condition so published. A different Trustee may be appointed by the Company for
the Securities of each series prior to the issuance of such Securities. If the initial Trustee for
the Securities of any series is to be other than U.S. Bank National
Association (or its successor in interest hereunder, if any), the Company and
such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture
supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the
Securities of such series and 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. If at any time the Trustee for the Securities of any series shall cease
to be eligible in accordance with the
provisions of this Section 8.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 8.10
Resignation and Removal; Appointment of Successor
. (a) No resignation or removal of
the Trustee for the Securities of any series and no appointment of a successor Trustee for the
Securities of such series pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.11 hereof.
(b) The Trustee, or any Trustee or Trustees hereafter appointed for the Securities of
any series, may resign at any time with respect to the Securities of one or more or all such
series by giving written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee for the Securities of any series shall not have been delivered to the
Trustee for the Securities of such series within thirty 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 for the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with
respect to one or more or all such series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such one or more series (each voting as a
class) delivered to such Trustee and to the Company.
(d) If at any time:
(i) the Trustee for the Securities of any series shall fail to comply
with Section 310(b) of the Trust Indenture Act with respect to the
Securities of such series after written request therefor by the Company or
by any Holder of Securities of such series who has been a bona fide Holder
of a Security of such series for at least six months, or
(ii) such Trustee shall cease to be eligible under Section 8.09 hereof
and shall fail to resign after written request therefor by the Company or by
any such Holder of Securities, or
(iii) such Trustee shall become incapable of acting with respect to the
Securities of such series or shall be adjudged a bankrupt or insolvent
41
or a
receiver of such Trustee or of its property shall be appointed or any public
officer shall take charge or control of such Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the Trustee, or (2)
subject to Section 7.14 hereof, any Holder of a Security of such series who has been a bona fide
Holder of such Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee for the Securities of such series.
(e) If the Trustee for the Securities of any series shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities
of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee for the Securities of such series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
for the Securities of such series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee for the Securities of such
series and supersede the successor Trustee appointed by the Company. If no successor
Trustee for the Securities of such series shall have been so appointed by the Company or
such Holders and accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee
for the Securities of any series and each appointment of a successor Trustee for the
Securities of such series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of the Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall include the name of such
successor Trustee and the address of its Corporate Trust Office.
Section 8.11
Acceptance of Appointment by Successor
. Every successor Trustee appointed hereunder
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, subject
nevertheless to its lien, if any, provided for in Section 8.07 hereof. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more fully and certain
vesting in and confirming to such successor Trustee all such rights, powers and trusts.
42
In case of the appointment hereunder of a successor Trustee for the Securities of one or more
(but not all) series, the Company, the predecessor Trustee and each successor Trustee for the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee for the Securities of any series
as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor
Trustee, and 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.
No successor Trustee for the Securities of any series shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under Section 8.09.
Section 8.12
Merger, Conversion, Consolidation or Succession to Business
. Any corporation into
which the Trustee for the Securities of any series may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
such Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of such Trustee, shall be the successor of the Trustee for such series
hereunder, provided such corporation shall be, with respect to such series, otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities of any series shall have been
authenticated, but not delivered, by the Trustee for such series or an Authenticating Agent for
such series, then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such successor Trustee or
successor Authenticating Agent had itself authenticated such Securities.
Section 8.13
Preferential Collection of Claims against Company
. Reference is made to Section 311
of the Trust Indenture Act, for purposes of which:
(i) The term
cash transaction
means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(ii) The term
self-liquidating paper
means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
43
merchandise previously
constituting the security,
provided
the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
Section 8.14
Authenticating Agent
. The Trustee may appoint an Authenticating Agent for the Securities of each series which shall be
acceptable to the Company, to act on behalf of such Trustee and subject to its direction in
connection with the authentication of the Securities of such series. Each Authenticating Agent
shall at all times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal or State authority. 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 8.14 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.
Securities of any series authenticated by the Authenticating Agent for the Securities of such
series shall be entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee for the Securities of such series. Whenever
reference is made in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or such Trustees certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by the Authenticating Agent for the
Securities of such series and a certificate of authentication executed on behalf of the Trustee by
such Authenticating Agent.
Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to the Securities of all series for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent may at any time resign 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 for the Securities of any series 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 any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.14, with respect to the Securities of one or more
or all series, the Trustee promptly shall appoint a successor Authenticating Agent which shall be
acceptable to the Company, and upon doing so shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all Holders of the Securities of such series
as the names and addresses of such Holders appear upon the Securities Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and
44
responsibilities of its predecessor hereunder with like effect as if
originally appointed as Authenticating Agent hereunder. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.14.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments
subject to the provisions of Section 8.07 hereof.
ARTICLE NINE
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 9.01
Company to Furnish Trustee Names and Addresses of Holders
. The Company will furnish
or cause to be furnished to the Trustee (a) semi-annually, on a date not more than 15 days after
each regular record date with respect to an Interest Payment Date, if any, for the Securities of
each series, and (b) on semi-annual dates in each year to be established as contemplated by Section
3.01 hereof if the Securities of any series do not bear interest and (c) at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of any such request, a
list in such form as the Trustee may reasonably require containing all the information in the
possession or control of the Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of the Securities of such series, obtained since the date as of
which the next previous list, if any, was furnished. Any such list may be dated as of a date not
more than 15 days prior to the time such information is furnished or caused to be furnished and
need not include information received after such date;
provided
,
however
, that as long as the
Trustee is the Securities Registrar for the Securities of such series, no such list shall be
required to be furnished.
Section 9.02
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
the Securities of each series contained in the most recent list furnished to such Trustee as
provided in Section 9.01 hereof or in the Securities Register if such Trustee be the Securities
Registrar for such series and the names and addresses of Holders received by the Trustee in its
capacity as Paying Agent for the Securities of such series. The Trustee may destroy any list
furnished to it as provided in Section 9.01 hereof upon receipt of a new list so furnished.
(b) If three or more Holders of the Securities of any series (hereinafter referred to
as
applicants
) apply in writing to the Trustee, furnish to the Trustee reasonable proof
that each such applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of the Securities of any series with
respect to their rights under this Indenture or under the Securities of any series and is
accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
45
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Subsection (a) of this Section 9.02,
or
(ii) inform such applicants as to the approximate number of such
Holders whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Subsection (a) of this Section 9.02,
and as to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
(c) If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall upon the written request of such applicants, mail to each
Holder to whom the applicant desires to communicate whose name and address appear in the
information preserved at the time by such Trustee in accordance with Subsection (a) of this
Section 9.02, a copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interests of such Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and shall enter
an order so declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(d) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee, nor any agent of the
Company or the Trustee, shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with Subsection (b)
of this Section 9.02, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material pursuant to
a request made under Subsection (b) of this Section 9.02.
Section 9.03
Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not
less than 60 days following the first date of issuance of the Securities of any series under this
Indenture and within 60 days after May 15 in every year thereafter, the Trustee shall transmit by
mail to all Holders of such series, as their names and addresses appear in the Securities Register,
any brief report, dated as of such May 15, required by Section 313(a) of the Trust Indenture Act
and at such other times in such manner such other reports as may be required
46
by Section 313 of the
Trust Indenture Act in each case with respect to the Securities of such series. A copy of each
such report shall, at the time of such transmission to such Holders, be filed by such Trustee with
each stock exchange upon which such Securities are listed and also
with the Commission. The Company will notify such Trustee when such Securities are listed on
any stock exchange.
Section 9.04
Reports by Company
. The Company will
(a) file with the Trustee for the Securities of each series, within 15 Business Days
after the Company files the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations prescribe) which
the Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with such Trustee and the
Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act of in respect of a security
listed and registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with such Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses appear in the
Securities Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section 9.04 as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) Notwithstanding the foregoing Section 9.04(a) and (b), the Company will be deemed
to have filed the reports required by Section 9.04(a) and (b) to the Trustee if it has filed
such reports with the SEC via the EDGAR filing system and such reports are publicly
available.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 10.01
Company May Consolidate, etc., Only on Certain Terms
. The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease all or substantially
all of its properties and assets to any Person or group of Persons other than to a direct or
indirect wholly-owned Subsidiary, unless:
47
(1) the Person formed by such consolidation or into which the Company is merged
or the Person or group of Persons that acquires by conveyance or transfer, or which
leases, all or substantially all of the properties and assets of the Company shall
be a Person organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee for the
Securities of each series in form satisfactory to such Trustee, the due and punctual
payment of the principal of and interest on all the Securities 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 that, after notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing other than an Event of Default which
will be cured by such merger or other transaction; and
(3) the Company has delivered to such Trustee an Officers Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection with
such transaction, and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have been
complied with.
The provisions of this Section 10.01 shall not be applicable to a merger or consolidation in
which the Company is the surviving corporation.
Section 10.02
Successor Person Substituted
. Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an entirety in accordance
with Section 10.01, the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer 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 Person had been named as the Company herein, and thereafter the predecessor Person
shall be relieved of all obligations and covenants under the Indenture and the Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01
Supplemental Indentures without Consent of Holders
. Without the consent of any
Holders, the Company, when authorized by 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:
(a) to evidence the succession of another Person to the Company, and the assumption by
any such successor of the covenants of the Company herein and in the Securities contained;
or
48
(b) to add to or modify the covenants or Events of Default of the Company, for the
benefit of the Holders of the Securities of any or all series, to convey, transfer, assign,
mortgage or pledge any property to or with such Trustee, or to surrender any right or power
herein conferred upon the Company; or
(c) to establish the form and terms of the Securities of any series as contemplated by
Section 2.01 or 3.01 hereof; or
(d) to add to or change any of the provisions of this Indenture as is necessary or
advisable to facilitate the issuance of Securities of any series in bearer form, registrable
or nonregistrable as to principal and with or without interest coupons, and to provide for
exchangeability of such Securities with the Securities of the same series issued hereunder
in fully registered form and to make all appropriate changes for such purpose, or to permit
or facilitate the issuance of Securities in uncertificated form; or
(e) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(f) to make any other provisions with respect to matters or questions arising under
this Indenture which shall not adversely affect the interests of the Holders in any material
respect; or
(g) to add to or change 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 of, or premium, if any, or interest on bearer Securities or on the
delivery of bearer Securities, or to permit bearer Securities to be issued in exchange for
bearer Securities of other authorized denominations,
provided
any such action shall not
adversely affect the interests of the Holders of bearer Securities of any series or any
related coupons in any material respect unless such amendment is required to comply with the
Bearer Rules; or
(h) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Article Six, provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series or any other series of Securities in
any material respect; or
(i) to evidence and provide for the acceptance of appointment hereunder of a Trustee
other than U.S. Bank National Association (or its successor in interest hereunder, if any), as Trustee for the Securities of any series of
Securities 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 8.09 hereof; or
(j) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series or 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 8.11 hereof; or
49
(k) to add to, change or eliminate any of the provisions of this Indenture;
provided
,
that any such addition, change or elimination (i) shall become effective only when no
Security of any series entitled to the benefits of such provision and issued prior to the
execution of such supplemental indenture is outstanding or (ii) shall not apply to any
outstanding Security.
Section 11.02
Supplemental Indentures with Consent of Holders
. Subject to Sections 7.12 and 7.13
hereof, with the consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of each series affected thereby, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by 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 of the Securities of such series under this Indenture;
provided
,
however
, that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of interest on,
any Security, or reduce the principal amount thereof or the interest thereon, or any premium
payable on the redemption thereof, or change the Place of Payment, or the coin or currency
in which any Security or the interest, if any, thereon is payable, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and payable upon an
acceleration of the Maturity thereof or adversely affect the right of repayment, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed for, any
payment under the sinking fund for any Security, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding 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
(c) modify any of the provisions of this Section 11.02 or Section 7.13 hereof, 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 Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of the Securities of one or more
particular series, or which modifies the rights of the Holders of the Securities of one or more
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 the Securities of any other series.
50
It shall not be necessary for any Act of Holders under this Section 11.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 11.03
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 for the Securities of any series shall
be entitled to receive, and (subject to Sections 8.01 and 8.03 hereof) 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. Such Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects such Trustees own rights, duties or immunities
under this Indenture or otherwise.
Section 11.04
Notice of Supplemental Indenture
. Promptly after the execution by the Company and
the appropriate Trustee of any supplemental indenture pursuant to Section 11.02 hereof, the Company
shall transmit by mail to all Holders of Securities of any series affected thereby, as their names
and addresses appear in the Securities Register, a notice setting forth in general terms the
substance of such supplemental indenture.
Section 11.05
Effect of Supplemental Indentures
. Upon the execution of any supplemental indenture
under this Article, this indenture shall be modified in accordance therewith but only with respect
to the Securities of each series affected by such supplemental indenture, and such supplemental
indenture shall form a part of this Indenture for all purposes with respect to the Securities of
such series; and every Holder of Securities of any such series theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 11.06
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 11.07
Reference in Securities to Supplemental Indentures
. 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 Securities 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 or on behalf of such Trustee in exchange for
Outstanding Securities of the same series.
ARTICLE TWELVE
COVENANTS
Section 12.01
Payment of Principal, Premium and Interest
. The Company will duly and punctually pay
the principal of, premium, if any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities established as contemplated by Section 3.01 and this
Indenture.
51
Section 12.02
Maintenance of Office or Agency
. The Company will maintain in each Place of Payment
for the Securities of any series, an office or agency where Securities of such series may be
presented or surrendered for payment, where Securities of such series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such series and this Indenture may be served;
provided
,
however
, that
at the option of the Company payment of interest may be made (subject to collection) by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register. With respect to the Securities of any series, such office or agency and each Place of
Payment shall be as established as contemplated by Section 3.01. In the absence of establishment
as contemplated by Section 3.01 with respect to the Securities of any series, (i) the Place of
Payment for such Securities shall be in the city that the Corporate Trust Office shall be in and
(ii) such office or agency in such Place of Payment shall initially be the Corporate Trust Office
of the Trustee. 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 for the Securities
of each series with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of such Trustee, and the Company hereby appoints the
Trustee its agent to receive all such presentations, surrenders, notices and demands with respect
to the Securities of such series.
The Company may also from time to time designate one or more other offices or agencies (in or
outside the Place of Payment) where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above, 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 such
purpose.
Section 12.03
Money for Securities Payments to Be Held in Trust
. If the Company shall at any time
act as its own Paying Agent, it will, on or before each due date of the principal of (and premium,
if any) or interest, if any, on, any of the Securities of any series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal, premium, if any, or interest, if any, 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 such series of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or before each due date
of the principal of (and premium, if any) or interest, if any, on, any Securities of any series,
deposit with a Paying Agent for the Securities of such series a sum sufficient to pay the
principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, if any, and (unless
such Paying Agent is the Trustee for the Securities of such series) the Company will promptly
notify such Trustee at its Corporate Trust Office of its failure so to act.
The Company will cause each Paying Agent for the Securities of any series 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 12.03, that such Paying Agent will
52
(a) hold all sums held by it for the payment of the principal of, premium, if any, or
interest, if any, on the Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give such Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any payment of principal, premium, if any,
or interest, if any; and
(c) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
such 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 such Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Section 12.04
Statement as to Compliance
. The Company will file with the Trustee within four
months after the close of each fiscal year (which, until the Company shall otherwise notify the
Trustee, shall be deemed to be the calendar year) a brief certificate, which need not comply with
Section 1.02 hereof, from the principal executive, financial or accounting officer of the Company
as to his or her knowledge of the Companys compliance with all conditions and covenants under this
Indenture (without regard to any period of grace or requirement of notice provided in this
Indenture).
Section 12.05
Corporate Existence
. Subject to Article Ten hereof, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 12.06
Permit No Vacancy in Office of Trustee
. The Company, whenever necessary to avoid or
fill a vacancy in the office of the Trustee for the Securities of any series, will appoint, in the
manner provided in Section 8.10 hereof, a Trustee for the Securities of such series, so that there
shall at all times be a Trustee for the Securities of every series hereunder.
Section 12.07
Waiver
. Without limitation of the rights of the Holders and the Company with respect
to waivers and amendments set forth in Sections 7.13 and 11.02, the Company may omit in any
particular instance to comply with a covenant or provision hereof which non-compliance could
constitute a default hereunder (other than (i) a covenant or provision with respect to the payment
of the principal of (or premium, if any) or interest, if any, on any Security of any series, or in
payment of any sinking fund installment or analogous obligation with respect to the Securities of
such series or (ii) a covenant or provision which under Article Eleven hereof cannot be modified or
amended without the consent of the Holder of each Outstanding Security affected), if before or
after the time for such compliance the Holders of at
53
least a majority in principal amount of the
Securities at the time Outstanding of any series affected by the omission shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such
covenant or provision, but no such waiver shall extend to or affect such covenant or provision
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
provision shall remain in full force and effect.
54
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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SELECTIVE INSURANCE GROUP, INC.
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By:
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Name:
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Dale A. Thatcher
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Title:
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Executive Vice President,
Treasurer and Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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Exhibit 4.2
SELECTIVE INSURANCE GROUP, INC.
AND
U.S. BANK
NATIONAL ASSOCIATION
Trustee
Subordinated Debt Indenture
Dated as of September , 2006
SELECTIVE INSURANCE GROUP, INC.
Indenture Dated as of September , 2006
CROSS REFERENCE SHEET*
Showing the Location in the Indenture of the Provisions Inserted Pursuant to Sections 310 to
318(a) inclusive of the Trust Indenture Act of 1939.
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Provisions of Trust Indenture
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Act of 1939
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Indenture Provision
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§
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310(a)(
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1), (2)
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§ 8.09
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(3)
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Not Applicable
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(4)
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Not Applicable
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(b
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)
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§ 8.08; § 8.10
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(c
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)
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Not Applicable
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§
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311(a)
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§ 8.13(a)
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(b
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)
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§ 8.13(b)
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(b
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)(2)
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§ 9.03 (a)(ii); § 9.03(b)
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(c
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)
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Not Applicable
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§
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312(a)
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§ 9.01; § 9.02(a)
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(b
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)
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§ 9.02(b)
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(c
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)
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§ 9.02(c)
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§
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313(a)
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§ 9.03(a)
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(b
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)(1)
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Not Applicable
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(2)
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§ 9.03(b)
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(c
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)
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§ 9.03(a); § 9.03(b)
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(d
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)
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§ 9.03(c)
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§
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314(a)
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§ 9.04
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(b
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)
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Not Applicable
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(c
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)
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§ 1.02
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(d
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)
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Not Applicable
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(e
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)
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§ 1.02
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(f
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)
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Not Applicable
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§
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315(a)
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(1)
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§ 8.01(a)(i)
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(2)
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§ 8.01(a)(ii)
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(b
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)
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§ 8.02
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(c
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)
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§ 8.01(b)
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(d
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)(1)
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§ 8.01(a)
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(2)
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§ 8.01(c)(ii)
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(3)
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§ 8.01(c)(iii)
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(e
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)
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§ 7.14
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§
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316(a)
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§ 7.12; § 7.13
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(b
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)
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§ 7.08
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(c
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)
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§ 1.04
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§
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317(a)
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(1), (2)
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§ 7.03; § 7.04
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(b
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)
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§ 12.03
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§
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318(a)
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§ 1.08
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*
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This Cross Reference Sheet is not part of the Indenture.
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i
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 1.01. Definitions
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1
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Section 1.02. Compliance Certificates and Opinions
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8
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Section 1.03. Form of Documents Delivered to Trustee
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9
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Section 1.04. Act of Holders
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9
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Section 1.05. Notices, etc., to Trustee and Company
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10
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Section 1.06. Notice to Holders; Waiver
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11
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Section 1.07. Immunity of Incorporator, Stockholders, Officers and Directors
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11
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Section 1.08. Conflict with Trust Indenture Act
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11
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Section 1.09. Effect of Headings and Table of Contents
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11
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Section 1.10. Successors and Assigns
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12
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Section 1.11. Separability Clause
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12
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Section 1.12. Benefits of Indenture
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12
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Section 1.13. Governing Law
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12
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Section 1.14. Cross References
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12
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Section 1.15. Counterparts
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12
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Section 1.16. Legal Holidays
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12
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Section 1.17. Securities in Foreign Currencies
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13
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ARTICLE TWO
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SECURITY FORMS
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Section 2.01. Forms Generally
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13
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Section 2.02. Form of Certificate of Authentication
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13
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Section 2.03. Securities in Global Form
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14
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ARTICLE THREE
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THE SECURITIES
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Section 3.01. Amount Unlimited; Issuable in Series
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14
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Section 3.02. Denominations
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17
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Section 3.03. Authentication and Dating
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17
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Section 3.04. Execution of Securities
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18
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Section 3.05. Exchange and Registration of Transfer of Securities
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19
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Section 3.06. Mutilated, Destroyed, Lost or Stolen Securities
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21
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Section 3.07. Temporary Securities
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22
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Section 3.08. Payment of Interest; Interest Rights Preserved
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22
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ii
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Page
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Section 3.09. Persons Deemed Owners
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23
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Section 3.10. Cancellation
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24
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Section 3.11. Computation of Interest
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24
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ARTICLE FOUR
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REDEMPTION OF SECURITIES
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Section 4.01. Applicability of Article
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24
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Section 4.02. Election to Redeem; Notice to Trustee
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24
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Section 4.03. Selection by Trustee of Securities to Be Redeemed
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25
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Section 4.04. Notice of Redemption
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25
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Section 4.05. Deposit of Redemption Price
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26
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Section 4.06. Securities Payable on Redemption Date
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26
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Section 4.07. Securities Redeemed in Part
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26
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ARTICLE FIVE
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SINKING FUNDS
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Section 5.01. Applicability of Article
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27
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Section 5.02. Satisfaction of Mandatory Sinking Fund Payments with Securities
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27
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Section 5.03. Redemption of Securities for Sinking Fund
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27
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ARTICLE SIX
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SATISFACTION AND DISCHARGE
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Section 6.01. Satisfaction and Discharge of Indenture
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29
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Section 6.02. Satisfaction, Discharge and Defeasance of Securities of any Series
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30
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Section 6.03. Application of Trust Money
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31
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Section 6.04. Paying Agent to Repay Moneys Held
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32
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Section 6.05. Return of Unclaimed Moneys
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32
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ARTICLE SEVEN
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REMEDIES
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Section 7.01. Events of Default
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32
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Section 7.02. Acceleration of Maturity; Rescission and Annulment
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34
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Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee
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35
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Section 7.04. Trustee May File Proofs of Claim
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35
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Section 7.05. Trustee May Enforce Claims without Possession of Securities
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36
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Section 7.06. Application of Money Collected
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36
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Section 7.07. Limitation on Suits
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37
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Section 7.08. Unconditional Right of Holders to Receive Principal, Premium and Interest
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38
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Section 7.09. Restoration of Rights and Remedies
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38
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iii
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Page
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Section 7.10. Rights and Remedies Cumulative
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38
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Section 7.11. Delay or Omission Not Waiver
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38
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Section 7.12. Control by Holders
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38
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Section 7.13. Waiver of Past Defaults
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39
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Section 7.14. Undertaking for Costs
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39
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Section 7.15. Waiver of Stay or Extension Laws
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39
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ARTICLE EIGHT
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THE TRUSTEE
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Section 8.01. Certain Duties and Responsibilities
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40
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Section 8.02. Notice of Defaults
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41
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Section 8.03. Certain Rights of Trustee
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41
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Section 8.04. Not Responsible for Recitals or Issuance of Securities
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42
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Section 8.05. May Hold Securities
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43
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Section 8.06. Money Held in Trust
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43
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Section 8.07. Compensation and Reimbursement
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43
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Section 8.08. Disqualification; Conflicting Interests
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44
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Section 8.09. Corporate Trustee Required; Different Trustees for Different Series; Eligibility
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44
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Section 8.10. Resignation and Removal; Appointment of Successor
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44
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Section 8.11. Acceptance of Appointment by Successor
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46
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Section 8.12. Merger, Conversion, Consolidation or Succession to Business
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47
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Section 8.13. Preferential Collection of Claims against Company
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47
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Section 8.14. Authenticating Agent
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47
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ARTICLE NINE
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HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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Section 9.01. Company to Furnish Trustee Names and Addresses of Holders
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49
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Section 9.02. Preservation of Information; Communications to Holders
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49
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Section 9.03. Reports by Trustee
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50
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Section 9.04. Reports by Company
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51
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ARTICLE TEN
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CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
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Section 10.01. Company May Consolidate, etc., Only on Certain Terms
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51
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Section 10.02. Successor Person Substituted
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52
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ARTICLE ELEVEN
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SUPPLEMENTAL INDENTURES
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Section 11.01. Supplemental Indentures without Consent of Holders
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52
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iv
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Page
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Section 11.02. Supplemental Indentures with Consent of Holders
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54
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Section 11.03. Execution of Supplemental Indentures
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55
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Section 11.04. Notice of Supplemental Indenture
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55
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Section 11.05. Effect of Supplemental Indentures
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56
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Section 11.06. Conformity with Trust Indenture Act
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56
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Section 11.07. Reference in Securities to Supplemental Indentures
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56
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ARTICLE TWELVE
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COVENANTS
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Section 12.01. Payment of Principal, Premium and Interest
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56
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Section 12.02. Maintenance of Office or Agency
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56
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Section 12.03. Money for Securities Payments to Be Held in Trust
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57
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Section 12.04. Statement as to Compliance
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58
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Section 12.05. Corporate Existence
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58
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Section 12.06. Permit No Vacancy in Office of Trustee
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58
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Section 12.07. Waiver
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58
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ARTICLE THIRTEEN
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SUBORDINATION OF THE SECURITIES
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Section 13.01. Agreement to Subordinate
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59
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Section 13.02. Liquidation, Dissolution, Bankruptcy
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59
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Section 13.03. Default on Senior Indebtedness
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59
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Section 13.04. Acceleration of Payment of Securities
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60
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Section 13.05. When Distribution Must Be Paid Over
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60
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Section 13.06. Subrogation
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61
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Section 13.07. Relative Rights
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61
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Section 13.08. Subordination May Not Be Impaired by Company
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61
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Section 13.09. Rights of Trustee and Paying Agent
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61
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Section 13.10. Distribution or Notice to Representative
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62
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Section 13.11. Article Thirteen Not to Prevent Events of Default or Limit Right to Accelerate
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62
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Section 13.12. Trust Monies Not Subordinated
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62
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Section 13.13. Trustee Entitled to Rely
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62
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Section 13.14. Trustee to Effectuate Subordination
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63
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Section 13.15. Trustee Not Fiduciary for Holders of Senior Indebtedness
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63
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Section 13.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions
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63
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v
SUBORDINATED DEBT INDENTURE, dated as of September , 2006, between SELECTIVE
INSURANCE GROUP, INC., a New Jersey corporation, having its principal office at 40 Wantage Avenue,
Branchville, New Jersey 07890 (the
Company
), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, having its corporate trust office at U.S. Bank, 10 W. Market Street, Suite
1150, Indianapolis, IN 46204, as trustee hereunder (the
Trustee
).
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate purposes and to issue debentures,
notes or other evidences of unsecured indebtedness therefor; and for its corporate purposes, the
Company has determined to make and issue its debentures, notes or other evidences of unsecured
indebtedness to be issued in one or more series (the
Securities
), as hereinafter provided, up to
such principal amount or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein contained and of the
purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar to
the Company duly paid by the Trustee at or before the ensealing and delivery of these presents, and
for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to
declare the terms and conditions upon which the Securities are to be issued, IT IS HEREBY
COVENANTED, DECLARED AND AGREED, by and between the parties hereto, that all the Securities are to
be executed, authenticated and delivered subject to the further covenants and conditions
hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit of those who shall
hold the Securities, or any of them, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions.
For all purposes of this Indenture, of all indentures supplemental hereto and all Securities
issued hereunder except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article shall have the meanings assigned to them in this Article, and
include the plural as well as the singular; (b) all terms used in this Indenture, in any indenture
supplemental hereto or in any such Securities which are defined in the Trust Indenture Act shall
have the meanings assigned to them in said Act; (c) all accounting terms not otherwise defined
herein or in such Securities shall have the meanings assigned to them in accordance with generally
accepted accounting principles.
Certain terms used in Article Eight hereof are defined in that Article.
Act
when used with respect to any Holder has the meaning specified in Section 1.04 hereof.
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.
Authenticating Agent
: See Section 8.14 hereof.
Authorized Newspaper
means a newspaper of general circulation in the same city in which the
Place of Payment with respect to Securities of a series shall be located or in the Borough of
Manhattan, The City of New York, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive
weekly publications in an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week and in the same or
in different Authorized Newspapers.
Bearer Rules
means the provisions of the Internal Revenue Code, in effect from time to time,
governing the treatment of bearer obligations and any regulations thereunder including, to the
extent applicable to any series of Securities, proposed or temporary regulations.
Board of Directors
means either the board of directors of the Company or any committee of
that board duly authorized to act for it in respect hereof.
Board Resolution
means a copy of a resolution or resolutions 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.
Business Day
means (i) when used with respect to any payment, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in the Place of
Payment with respect to such payment are authorized or required by law or executive order to close
and (ii) when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan, The City of New York,
or in the city in which the Corporate Trust Office of the Trustee is located are authorized or
required by law or executive order to close.
Commission
means the United States Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or 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.
2
Company
means the corporation named as the
Company
in the first paragraph of this
instrument until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter
Company
shall mean each such successor corporation.
Company Consent
,
Company Order
and
Company Request
mean, respectively, a written
consent, order or request signed in the name of the Company by its Chairman of the Board, any one
of its Vice Chairmen, the Chief Executive Officer, its President, any one of its Senior Executive
Vice Presidents, any one of its Executive Vice Presidents, any one of its Senior Vice Presidents,
any one of its Vice Presidents, its Treasurer, any one of its Assistant Treasurers, its Secretary
or any one of its Assistant Secretaries, and delivered to the Trustee.
Corporate Trust Office
means the principal office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office of U.S. Bank
National Association, at the date of the execution of this Indenture, is located at U.S. Bank, 10
W. Market Street, Suite 1150, Indianapolis, IN 46204, Attention: Ann Forey.
corporation
means a corporation, association, company or business trust.
Defaulted Interest
: See Section 3.08 hereof.
Depositary
when used with respect to the Securities of any series issuable or issued, in
whole or in part, in the form of a Global Security, means the Person designated as Depositary by
the Company pursuant to Section 3.01 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 Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
Dollars
and the sign
$
mean 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.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Event of Default
: See Section 7.01 hereof.
Federal Bankruptcy Code
: See Section 7.01 hereof.
Foreign Currency
means any currency issued by the government of any country other than the
United States of America or any composite currency (including, without limitation, the European
Currency Unit).
Global Security
means a Security issued to evidence all or a part of any series of
Securities which is executed by the Company and authenticated and delivered to the Depositary or
pursuant to the Depositarys instructions, all in accordance with this Indenture and
3
pursuant to a
Company Order, which shall be registered in the name of the Depositary or its nominee.
Holder
means, unless otherwise established as contemplated by Section 3.01 with respect to
the Securities of any series, a Person in whose name a Security of any series is registered in the
Securities Register for the Securities of such series.
Indenture
means this instrument as originally executed, or as it may be amended or
supplemented from time to time as herein provided, and shall include the form and terms of the
Securities of each series established as contemplated by Sections 2.01 and 3.01.
interest
when used with respect to any non-interest bearing Security means interest payable
after Maturity thereof.
Interest Payment Date
when used with respect to the Securities of any series means the
Stated Maturity of an installment of interest on the Securities of such series.
Issue Date
means the first date on which Securities are issued pursuant to this Indenture.
Junior Subordinated Indenture
means an Indenture, dated as of September , 2006, between
the Company and U.S. Bank National Association, as trustee, as the
same may be amended or supplemented from time to
time.
Maturity
when used with respect to any Security means the date on which the principal of
such Security becomes due and payable whether at the Stated Maturity or by declaration of
acceleration, call for redemption, pursuant to a sinking fund, notice of option to elect repayment
or otherwise.
Officers Certificate
means a certificate of the Company signed by its Chairman of the
Board, any one of its Vice Chairmen, the Chief Executive Officer, its President, any one of its
Senior Executive Vice Presidents, any one of its Executive Vice Presidents, any one of its Senior
Vice Presidents, any one of its Vice Presidents, its Treasurer, any one of its Assistant
Treasurers, its Secretary or any one of its Assistant Secretaries, and delivered to the Trustee.
Wherever this Indenture requires that an Officers Certificate be signed also by an accountant or
other expert, such accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the employ of the Company
and shall be acceptable to the Trustee.
Opinion of Counsel
means a written opinion of the counsel, who may be an employee of or of
counsel to the Company, or other counsel reasonably satisfactory to the Trustee.
Original Issue Discount Security
means any Security which (i) is issued at a price lower
than the amount payable upon the Stated Maturity thereof and (ii) provides for an amount less than
the principal amount thereof to be due and payable upon redemption or a declaration of acceleration
of the Stated Maturity thereof pursuant to Section 7.02 hereof.
4
Outstanding
when used with respect to Securities means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except
:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) 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 Securities;
provided
,
however
, that, if such Securities or portions thereof 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
(c) Securities paid or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory to the
Trustee is presented that any such Securities are held by a holder in due course;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of
Securities Outstanding have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or 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 any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded (Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor), and (ii) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration pursuant
to Section 7.02 hereof.
Overdue Rate
when used with respect to the Securities of any series means the rate
designated as such, established as contemplated by Section 3.01 for the Securities of such series.
Paying Agent
means any Person authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
Person
means any individual, corporation, partnership, limited liability company, joint
venture, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Permitted Junior Securities
shall mean unsecured debt or equity securities of the Company or
any successor corporation issued pursuant to a plan of reorganization or readjustment of the
Company, as applicable, that are subordinated in right of payment to all then
5
outstanding Senior
Indebtedness of the Company, as applicable, at least to the same extent that the Securities are
subordinated to the payment of all Senior Indebtedness of the Company.
Place of Payment
when used with respect to the Securities of any series means the place or
places where the principal of (and premium, if any) and interest, if any, on the Securities of such
series are specified as payable, established as contemplated by Section 3.01 or, if not so
established, specified in Section 12.02.
Predecessor Securities
of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security; and for the
purposes of this definition, any Security authenticated and delivered under Section 3.06 hereof in
lieu of a mutilated, lost, destroyed or stolen Security shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen Security.
record date
: See Section 3.08 hereof.
Redemption Date
when used with respect to any Security or portion thereof to be redeemed
means the date fixed for such redemption pursuant hereto.
Redemption Price
when used with respect to any Security or portion thereof to be redeemed on
any Redemption Date means the price at which it is to be so redeemed, established as contemplated
by Section 3.01 exclusive of interest accrued and unpaid to such Redemption Date.
Representative
means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness, as applicable;
provided
that if, and for so long as, such Senior Indebtedness lacks
such a Representative, then the Representative for such Senior Indebtedness shall at all times
constitute the holder or holders of a majority in outstanding principal amount of obligations under
such Senior Indebtedness.
Responsible Officer
when used with respect to the Trustee means any officer of the Trustee
authorized by the Trustee to administer its corporate trust matters.
Securities
: See RECITALS OF THE COMPANY herein.
Securities Register
and
Securities Registrar
: See Section 3.05 hereof.
Senior Indebtedness
with respect to the Company means the principal, premium (if any) and
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not such claim for post-petition interest is
allowed in such proceeding) on and of all indebtedness and obligations (other than the Securities,
but including any debentures, notes or other evidence of indebtedness issued under the Senior
Indenture) of, or guaranteed or assumed by, the Company that
(i) are for borrowed money, (ii) are
evidenced by bonds, debentures, notes or other similar instruments, (iii) represent obligations to
policyholders of insurance or investment contracts, (iv) represent a reimbursement obligation with
respect to a letter of credit, bankers acceptance or similar
facility, (v) represent our lease obligations that we
capitalize in accordance with generally accepted accounting
principles, or (vi) represent the
deferred purchase price of property or services, in each case, whether outstanding on the Issue
Date or thereafter created, incurred, assumed or guaranteed, and all
6
amendments, renewals,
extensions, modifications and refundings of such indebtedness and obligations, unless in any such
case the instrument by which such indebtedness or obligations are created, incurred, assumed or
guaranteed by the Company, or are otherwise evidenced, provides that they are subordinated, or are
not superior, in right of payment to the Securities;
provided, however,
that Senior Indebtedness
shall not include, as applicable:
(1) any obligation of the Company to any Subsidiary of the Company,
(2) any liability for Federal, state, local or other taxes owed or owing by the
Company or any Subsidiary of the Company,
(3) any accounts payable or other liability to trade creditors (including
guarantees thereof or instruments evidencing such liabilities),
(4) any indebtedness or obligation of the Company issued under the Junior
Subordinated Indenture,
(5) any obligations with respect to any capital stock of the Company, or
(6) any indebtedness which by its terms is expressly made equal in rank and
payment with or subordinated to the Securities.
If any Senior Indebtedness is disallowed, avoided or subordinated pursuant to the provisions
of Section 548 of Title 11 of the United States Code or any applicable state fraudulent conveyance
law, such Senior Indebtedness nevertheless will constitute Senior Indebtedness.
Senior Indenture
means an Indenture, dated as of September , 2006, between the Company
and U.S. Bank National Association, as trustee, as the same may be
amended or supplemented from time to time.
Stated Maturity
when used with respect to any Security or any installment of interest
thereon means the date specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
Subsidiary
of any Person means (i) any corporation of which such Person at the time owns or
controls, directly or through an intervening medium, more than fifty per cent (50%) of each class
of outstanding Voting Stock, (ii) any limited liability company, general partnership, joint
venture, joint stock company or similar entity, of which such Person at the time owns or controls,
directly or through an intervening medium, more than fifty per cent (50%) of its outstanding
partnership, membership or similar voting interests, as the case may be and (iii) any limited
partnership of which such Person, directly or through an intervening medium, is a general partner,
and unless otherwise specified shall mean a Subsidiary of the Company.
Trustee
means the Person named as the
Trustee
in the first paragraph of this instrument
and, subject to the provisions of Article Eight hereof, shall also include its successors and
assigns as Trustee hereunder. If there shall be at any one time more than one Trustee
7
hereunder,
Trustee shall mean each such Trustee and shall apply to each such Trustee only with respect to
the Securities of those series with respect to which it is serving as Trustee.
Trust Indenture Act
and
TIA
means the Trust Indenture Act of 1939, as amended and as in
force at the date as of which this instrument was executed, except as provided in Section 11.06
hereof.
U.S. Government Obligations
means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and which shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such obligation set forth in (i) or (ii)
above or a specific payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt;
provided
that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
obligation evidenced by such depository receipt or the specific payment of interest on or principal
of such obligation.
Vice President
when used with respect to the Company means any vice president, whether or
not designated by a number or a word or words added before or after the title
vice president
.
Voting Stock
means stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
Section 1.02.
Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent (including any covenant compliance with which constitutes a
condition 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:
(a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
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(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 1.03.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such matters are
erroneous.
Any certificate, statement or opinion of an Officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Company, unless such Officer or counsel,
as the case may be, knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which his or her
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated to form one instrument.
Section 1.04.
Act of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise
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expressly
provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the
Act
of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 8.01 hereof) conclusive
in favor of the Trustee and the Company, if made in the manner provided in this Section
1.04.
(b) The fact and date of the execution by any Person of any such instrument or writing,
or the authority of the Person executing the same, may be proved in any manner that the
Trustee deems sufficient and in accordance with such reasonable requirements as the Trustee
may determine.
(c) The ownership of Securities of any series shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company or any agent of the
Trustee or the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent or take any other action under this Indenture, which
record date shall not be more than 60 days nor less than 10 days prior to the solicitation
with respect thereto, and only such Holders shall be so entitled.
Section 1.05.
Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (except as provided in Subsection (d) of Section 7.01 hereof) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it 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.
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Section 1.06.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Securities Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed
in the manner prescribed by this Indenture shall be deemed to have been given whether or not such
Holder receives said notice. 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.
Section 1.07.
Immunity of Incorporator, Stockholders, Officers and Directors.
No recourse shall be had for the payment of the principal of (and premium, if any) or the
interest, if any, on any Security of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer
or director, as such, past, present or future of the Company or of any successor corporation,
either directly or indirectly through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all the Securities are
solely corporate obligations, and that no personal liability whatever shall attach to, or is
incurred by, any incorporator, stockholder, officer or director, past, present
or future, of the Company or of any successor corporation, either directly or indirectly
through the Company or any successor corporation, because of the incurring of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities, or to be implied herefrom or therefrom;
and that all such personal liability is hereby expressly released and waived as a condition of, and
as part of the consideration for, the execution of this Indenture and the issue of the Securities.
Section 1.08.
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision deemed to be
included in this Indenture by any of the provisions of the Trust Indenture Act, such
deemed-included provision shall control.
Section 1.09.
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.
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Section 1.10.
Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.11.
Separability Clause.
In case any provision in this Indenture or in any Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions hereof or of
any Securities shall not in any way be affected or impaired thereby.
Section 1.12.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, and the Holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13.
Governing Law.
This Indenture and each Security shall be deemed to be a contract made under the laws of the
State of New York and this Indenture and each Security for all purposes shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.14.
Cross References.
All references herein to
Articles
and other subdivisions are to the corresponding Articles
or other subdivisions of this Indenture; and the words
herein
hereof
hereby
hereunder
"
hereinbefore
and
hereinafter
and other words of similar purport refer to this Indenture
generally and not to any particular Article, Section or other subdivision hereof.
Section 1.15.
Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.
Section 1.16.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security
of any series is not a Business Day at the relevant Place of Payment with respect to Securities of
such series, then notwithstanding any other provision of this Indenture or the Securities, payment
of interest, if any, or principal and premium, if any, with respect to such Security need not be
made at such Place of Payment on such date but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such Interest Payment Date or
Redemption Date or at the Stated Maturity, and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be.
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Section 1.17.
Securities in Foreign Currencies.
Whenever this Indenture provides for any action by, or any distribution to, Holders of
Securities denominated in Dollars and in any Foreign Currency, in the absence of any provision to
the contrary established as contemplated by Section 3.01 for the Securities of any particular
series, any amount in respect of any Security denominated in a Foreign Currency shall be treated
for any such action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of such date as the Company may specify in a
Company Order.
ARTICLE TWO
SECURITY FORMS
Section 2.01.
Forms Generally.
The Securities of each series shall be in substantially the forms as shall be established by
or pursuant to Board Resolution or one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, 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 any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities of each series shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.02.
Form of Certificate of Authentication.
The Certificate of Authentication on all Securities shall be in substantially the following
form:
This is one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
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U.S. Bank National Association,
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as Trustee
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By:
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[Authorized Officer]
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or
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By:
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[As Authenticating Agent]
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By:
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[Authorized Officer]
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Section 2.03.
Securities in Global Form.
If any Security of a series is issuable as a Global Security (in whole or in part), such
Global Security may provide that it shall represent the aggregate principal amount of Outstanding
Securities of such series from time to time represented thereby in the records of the Trustee or
endorsed thereon and may also provide that the aggregate principal amount of Outstanding Securities
of such series represented thereby in the records of the Trustee or endorsed thereon may from time
to time be reduced or increased. Any change in the records of the Trustee or any endorsement of a
Global Security to reflect the aggregate principal amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made by the Trustee in accordance
with provisions established as contemplated by Section 3.01.
ARTICLE THREE
THE SECURITIES
Section 3.01.
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or one or more indentures supplemental hereto, prior to the issuance of any
Securities of any series:
(a) the title of the Securities of such series (which shall distinguish the Securities
of such series from all other series of Securities);
(b) any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered pursuant to Section 3.05, 3.06, 3.07, 4.07, or 11.07 hereof);
(c) the date or dates, or the method by which such date or dates will be determined or
extended, on which the principal of and premium, if any, on the Securities of such series is
payable;
(d) the Persons to whom interest on Securities of such series shall be payable, if
other than the Persons in whose names such Securities are registered at the close of
business on the record date for such interest;
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(e) the rate or rates, or the method to be used in determining the rate or rates, at
which the Securities of such series shall bear interest, if any, the date or dates from
which such interest shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable and, if other
than as set forth in Section 3.08 hereof, the record date for the determination of Holders
to whom such interest is payable, and the basis upon which Interest shall be calculated if
other than as set forth in Section 3.11;
(f) the circumstances, if any, in which principal, premium, if any, or interest on such
debt security may be deferred;
(g) the place or places at which (i) the principal of and premium, if any, and
interest, if any, on Securities of such series shall be payable if other than as set forth
in the third sentence of Section 12.02, (ii) registration of transfer of Securities of such
series may be effected, (iii) exchanges of Securities of such series may be effected and
(iv) notice and demands to or upon the Company in respect of the Securities of such series
and this Indenture may be served; and if such is the case, that the principal of such
Securities shall be payable without the presentment or surrender thereof;
(h) any optional redemption or repayment provisions;
(i) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of such series may be redeemed, in whole or in part, at the
option of the Company, at the option of a Holder or otherwise;
(j) the obligation, if any, of the Company to redeem, purchase or repay Securities of
such series pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(k) if other than Dollars, the Foreign Currency or Foreign Currencies in which payment
of the principal of and premium, if any, and interest, if any, on the Securities of such
series shall be payable or in which such Securities will be denominated;
(l) if the principal of and premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder thereof, in a coin
or currency (including a composite currency) other than that in which such Securities are
stated to be payable, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(m) if denominated or payable in any coin or currency, including composite currencies,
other than Dollars, or if the terms of the Securities provide that the principal amount
thereof payable at maturity may be more or less than the principal face amount thereof at
original issuance, the method by which the Securities of such series shall be valued, which
may be any reasonable method, against the Securities of all other series for voting, the
giving of any request, demand, authorization, direction, notice, consent or
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waiver,
distribution and all other purposes hereof and any provisions required for purposes of
applying Sections 6.01 and 6.02 hereof;
(n) if the amount of payments of principal of and premium, if any, or interest, if any,
on the Securities of such series may be determined with reference to an index, the formula
or other method (which may be based on one or more currencies (including a composite
currency), commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(o) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of such series shall be issuable;
(p) if other than the principal amount thereof, the portion of the principal amount of
Securities of such series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 hereof or the method by which such portion shall
be determined;
(q) any addition to, or modification or deletion of, any Event of Default or any
covenant of the Company specified herein with respect to the Securities of such series;
(r) if other than the rate of interest stated in the title of the Securities of such
series, the applicable Overdue Rate;
(s) if the Securities of such series do not bear interest, the applicable dates for
purposes of Section 9.01 hereof,
(t) the inapplicability to the Securities of such series of Section 6.02 relating to
satisfaction, discharge and defeasance of Securities or, if applicable, any modification to
Section 6.02 with respect to the Securities of such series;
(u) if other than U.S. Bank National Association is to act as Trustee for the
Securities of such series, the name and Corporate Trust Office of such Trustee;
(v) whether the Securities of such series shall be issued in whole or in part in the
form of a Global Security or Securities and, in such case the terms and conditions, if any,
upon which such Global Security or Securities may be exchanged in whole or in part for other
definitive Securities, the Depositary for such Global Security or Securities (which shall be
a clearing agency registered under the Exchange Act, or any other applicable statute or
regulation, to the extent required thereunder), whether such Global Security shall be
permanent or temporary, any limitations on the rights of the Holder or Holders to transfer
or exchange the same or to obtain the registration of transfer thereof in addition to or in
lieu of those set forth in Section 3.05, any limitations on the rights of the Holder or
Holders thereof to obtain certificates in definitive form, and, the provisions for
determining the aggregate principal amount of Outstanding Securities from time to time
represented thereby and any and all matters incidental to such Global Security or
Securities;
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(w) if the Securities of such series may be converted into or exchanged for other
securities of the Company or any other Persons, the terms and conditions pursuant to which
the Securities of such series may be converted or exchanged;
(x) if the principal of or premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or other property, or
the method by which such amount shall be determined, and the periods within which, and the
terms and conditions upon which, any such election may be made;
(y) if the Securities of any such series are to be issued as certificated debt
securities in bearer form, to be issued outside the United States to non-U.S. persons, and,
any and all matters incidental thereto;
(z) if the Securities of such series are to be issued upon the exercise of a warrant or
right, the time, manner and place for such Securities to be authenticated and delivered; and
(aa) any other terms of the Securities of such series (which terms shall conform to any
applicable requirements of the TIA, and shall not materially adversely affect the rights of
the Holders of Securities of such series then outstanding).
All Securities of any one series shall be substantially identical except as to principal
amount and except as may otherwise be established as contemplated by this Section 3.01.
Section 3.02.
Denominations.
Unless otherwise established as contemplated by Section 3.01, the Securities of each series
shall be issuable only in registered form without coupons in such denominations as shall be
established as contemplated by Section 3.01 or in the absence thereof, in denominations of $1,000
and any integral multiple thereof.
Section 3.03.
Authentication and Dating.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article, the Trustee shall thereupon
authenticate and deliver, or cause to be authenticated and delivered, said Securities pursuant to a
Company Order, which shall specify the principal amount, registered holder and delivery
instructions for each such Security. In authenticating (or causing authentication of) such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, prior to the authentication of such
Securities, and (subject to Sections 8.01 and 8.03 hereof) shall be fully protected in relying
upon:
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(a) a Board Resolution relating thereto and, if applicable, an appropriate record of
any action taken pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any, relating thereto;
(c) an Officers Certificate setting forth the form and terms of the Securities of such
series as established as contemplated by Sections 2.01 and 3.01 hereof (to the extent not
set forth in the documents delivered pursuant to Subsection 3.03(a) or 3.03(b)) and stating
that all conditions precedent provided for in this Indenture relating to the issuance of
such Securities have been complied with, that no Event of Default with respect to the
Securities of any Series has occurred and is continuing and that the issuance of such
Securities is not and will not result in (i) an Event of Default or an event or condition
which, upon the giving of notice or the lapse of time or both, would become an Event of
Default or (ii) a default under the provisions of any other instrument or agreement by which
the Company is bound; and
(d) an Opinion of Counsel stating that the form and terms of such Securities have been
established as contemplated by Sections 2.01 and 3.01 in conformity with the provisions of
this Indenture.
The Trustee shall have the right to decline to authenticate and deliver, or cause to be
authenticated and delivered, any Securities under this Section 3.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith
shall determine that such action would expose the Trustee to personal liability to existing Holders
or would otherwise adversely affect its rights, duties, obligations or immunities hereunder.
Unless otherwise provided in the form of Securities of any particular series, each Security
shall be dated the date of its authentication.
Section 3.04.
Execution of Securities.
The Securities shall be signed in the name and on behalf of the Company by the manual or
facsimile signatures of its Chairman of the Board, Chief Executive Officer, its President, any one
of its Senior Executive Vice Presidents, any one of its Executive Vice Presidents, any one of its
Senior Vice Presidents or any one of its Vice Presidents, under its corporate seal (which may be
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise) and attested to by
its Secretary or any one of its Assistant Secretaries, whose signatures may be manual or facsimile.
Only such Securities as shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by or on behalf of the Trustee by manual signature, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by or on behalf of the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
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In case any officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Securities so signed shall have been authenticated and delivered by or
on behalf of the Trustee, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such Securities had not
ceased to be such officer of the Company; and any Security may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Security, shall be the proper
officers of the Company, although at the date of the execution of this Indenture any such person
was not such an officer.
Section 3.05.
Exchange and Registration of Transfer of Securities.
Securities of any series (except for Global Securities, which may only be exchanged in limited
circumstances described below) may be exchanged for a like aggregate principal amount of Securities
of the same series of other authorized denominations. Unless otherwise established as contemplated
by Section 3.01, Securities to be exchanged shall be surrendered at any of the offices or agencies
of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Company
shall execute and register, or cause to be registered, and the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, in exchange therefor the Security or
Securities which the Holder making such exchange shall be entitled to receive.
Unless otherwise established as contemplated by Section 3.01, the Company shall keep at the
office or agency in the same city in which the Corporate Trust Office of the Trustee is located, a
register for the Securities of each series issued hereunder (the register maintained at such office
or agency and at any other office or agency of the Company in a Place of Payment being herein
collectively referred to as the
Securities Register
) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities of
such series and registration of transfer of such Securities as
provided in this Article. Such Securities Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. The Trustee is hereby
initially appointed
Securities Registrar
for the purpose of registering Securities and
registering transfers of Securities as herein provided. Upon due presentment for registration of
transfer of any Security of any series at any of the offices or agencies of the Company maintained
as provided in Section 12.02 hereof for such purpose, the Company shall execute and register, or
cause to be registered, and the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, in the name of the transferee or transferees a new Security or
Securities of the same series in authorized denominations for an equal aggregate principal amount.
Every Security issued upon registration of transfer or exchange of Securities pursuant to this
Section 3.05 shall be the valid obligation of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Security or Securities surrendered upon
registration of such transfer or exchange.
All Securities presented for registration of transfer or for exchange, redemption or payment
shall (if so required by the Company, the Trustee or the Securities Registrar) be duly endorsed by,
or be accompanied by, a written instrument or instruments of transfer in form
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satisfactory to the
Company, the Trustee and the Securities Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.07, 4.07 or 11.07 hereof not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of or exchange any
Security of any series during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of such series and ending at the close of
business on the day of such mailing or (b) to register the transfer of or exchange any Security
selected for redemption in whole or in part, except, in the case of any Security to be redeemed in
part, the portion thereof not to be redeemed.
Each Global Security authenticated under this Indenture shall be registered in the name of the
Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise
specified as contemplated by Section 3.01, no Global Security shall be registered for transfer or
exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07
or 11.07 in the name of a Person other than the Depositary for such Security or its nominee until
(i) the Depositary with respect to a Global Security notifies the Company in writing that it is
unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act or other applicable statute or regulation if
required thereunder, and the Company notifies the Trustee that it is unable to locate a qualified
successor Depositary, (ii) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable and exchangeable or (iii)
there shall have occurred and be continuing an Event of Default with respect to the Securities
of such Series. Upon the occurrence in respect of any Global Security of any series of any one or
more of the conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or such
other conditions as may be specified as contemplated by Section 3.01 for such series, such Global
Security may be registered for transfer or exchange for Securities registered in the names of, or
authenticated and delivered to, such Persons as the Depositary with respect to such series shall
instruct the Trustee in writing. The Trustee, upon receipt of such instruction, will authenticate
and deliver Securities of such series of like tenor and terms 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.
Except as provided in the preceding paragraph, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global Security or any portion
thereof, whether pursuant to this Section 3.05, Section 3.06, 3.07, 4.07 or 11.07 or otherwise,
shall also be a Global Security. Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or to another Depositary or a nominee thereof or by a
20
nominee of such
Depositary to such Depositary or another nominee of such Depositary or to another Depositary or a
nominee thereof.
Upon such terms established as contemplated by Section 3.01 with respect to the Securities of
any series, the Depositary for the Securities of such series may surrender a Global Security for
such series in exchange in whole or in part for Securities of such series of like tenor and terms
and in definitive form. Thereupon the Company shall execute, and the Trustee upon receipt of a
Company Order shall authenticate and deliver, without service charge, (i) to the Depositary or to
each Person specified by such Depositary a new Security or Securities of the same series, of like
tenor and terms in definitive form and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Persons beneficial interest in the
Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a
principal amount equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered pursuant to clause (i).
Upon the exchange of a Global Security for Securities in definitive form, such Global Security
shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security
pursuant to this Section shall either be in global form, established as contemplated by Sections
2.01 and 3.01, or shall be registered in such names and in such authorized denominations and
delivered to the Depositary or to such Persons at such addresses as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing.
Section 3.06.
Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security of any series shall become mutilated or be
destroyed, lost or stolen, and in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company in the case of a mutilated
Security shall, and in the case of a lost, stolen or destroyed Security may in its discretion, execute, and upon a Company Request the Trustee shall authenticate and deliver, or
cause to be authenticated and delivered, a new Security of the same series bearing a number, letter
or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for
the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen, or if any such Security shall have become due and payable or shall be about to become due
and payable, instead of issuing a substituted Security, the Company may pay or authorize the
payment of the same without surrender thereof (except in the case of a mutilated Security). In
every case the applicant for a substituted Security shall furnish to the Company and to the Trustee
such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and to the
Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Upon the issuance of any substituted Security under this Section 3.06, 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 any
Authenticating Agent) connected therewith.
21
Every substituted Security of any series issued pursuant to the provisions of this Section
3.06 by virtue of the fact that any Security of such series is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions of this Section 3.06 are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude (to the extent
lawful) any and all other rights or remedies with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 3.07.
Temporary Securities.
Pending the preparation of definitive Securities of any series the Company may execute and the
Trustee shall authenticate and deliver, or cause to be authenticated and delivered, temporary
Securities of such series (printed, lithographed, typewritten, mimeographed or otherwise produced).
Temporary Securities shall be issuable in any authorized denomination and substantially in the form
of the definitive Securities in lieu of which they are issued but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be determined by the
Company with the concurrence of the Trustee. Every such temporary Security shall be executed by the
Company and shall be authenticated by or on behalf of Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive Securities in lieu of
which they are issued. Without unreasonable delay the Company will execute and deliver to the
Trustee definitive Securities of such series and thereupon any or all temporary Securities of such
series may be surrendered in exchange therefor, at any of the offices or agencies of the Company
maintained as provided in Section 12.02 hereof for such purpose, and the Trustee shall authenticate
and deliver, or cause to be authenticated and delivered, in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of such series. Such exchange shall be
made by the Company at its own expense and without any charge therefor except that in case of any such exchange involving any
registration of transfer the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Notwithstanding the foregoing provisions of this Section 3.07, Global Securities may remain in
temporary form and, unless otherwise established as contemplated by Section 3.01, shall not be
exchangeable for definitive Global Securities.
Section 3.08.
Payment of Interest; Interest Rights Preserved.
The Holder at the close of business on any record date with respect to any Interest Payment
Date shall be entitled to receive the interest, if any, payable on such Interest Payment Date
notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to the
record date and prior to such Interest Payment Date. Except as otherwise established as
contemplated by Section 3.01 for Securities of a particular series, the term
record date
as used
in this Section 3.08 with respect to any Interest Payment Date, shall mean the last day of the
calendar month preceding such Interest Payment Date if such Interest Payment Date is
22
the fifteenth
day of the calendar month, and shall mean the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the first day of the calendar month, whether
or not such day shall be a Business Day.
If and to the extent the Company shall default in the payment of the interest due on such
Interest Payment Date, such defaulted interest (herein called
Defaulted Interest
) shall forthwith
cease to be payable to the registered Holder on such record date by virtue of having been such
Holder; and such Defaulted Interest shall be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:
(a) The Company may make payment of any Defaulted Interest to the Holders entitled
thereto at the close of business on a subsequent record date established in the following
manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each applicable Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Holders
entitled to such Defaulted Interest as in this clause (a) provided. Thereupon the Trustee
shall fix a record date for the payment of such Defaulted Interest which shall not be 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 record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the record date therefor to be mailed, first-class postage prepaid, to each
Holder entitled thereto at his address as it appears on the Securities Register, not less
than 10 days prior to such record date. Notice of the proposed payment of such Defaulted
Interest and the record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Holders of applicable Securities at the close of business on such record date (notwithstanding the
cancellation of such Securities upon any transfer or exchange subsequent to such record date
and prior to such payment) and shall no longer be payable pursuant to the following clause
(b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of such series 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 (b), such manner of payment shall be deemed
practicable by the Trustee. Subject to the foregoing provisions of this Section 3.08, each
Security delivered under this Indenture upon registration of transfer of or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Security.
Section 3.09.
Persons Deemed Owners.
Prior to the due presentment for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any Security is
23
registered
as the owner of such Security for the purpose of receiving payment of principal of and premium, if
any and (subject to Section 3.08 hereof) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such 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.
None of the Company, the Trustee, any Paying Agent or the Securities Registrar shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests and they shall be protected in acting
or refraining from acting on any such information provided by the Depositary.
Section 3.10.
Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying
Agent or any Securities Registrar, be surrendered to the Trustee and promptly cancelled by it, or,
if surrendered to the Trustee, shall be promptly cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall destroy cancelled Securities and deliver a certificate of such destruction to the
Company unless, by a Company Order, the Company directs that such cancelled Securities be returned
to it. If the Company shall acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation.
Section 3.11.
Computation of Interest.
Except as otherwise established as contemplated by Section 3.01 hereof for Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 4.01.
Applicability of Article.
The provisions of this Article shall be applicable to all Securities which are redeemable
before their Stated Maturity except as otherwise established as contemplated by Section 3.01 hereof
for Securities of any series.
Section 4.02.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of a series, the Company shall, at least 60 days prior to
24
the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) deliver to
the Trustee an Officers Certificate setting forth such Redemption Date and the principal amount of
Securities of such series to be redeemed and stating that no default in payment of interest or
Event of Default has occurred and is continuing with respect to the Securities of such series.
Section 4.03.
Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the particular Securities of
such series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate (which is in compliance with the
requirements of any national securities exchange on which such Securities are listed) and which may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of such series or any integral multiple thereof) of the principal of Securities of a
denomination greater than the minimum authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security 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 Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed, whether or not such provisions so provide.
Section 4.04.
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Securities Register. Neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, and accrued interest, if any,
(c) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Securities of such series to be redeemed,
(d) that on the Redemption Date the Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due and payable upon each such Security, and
that interest thereon shall cease to accrue from and after said date,
25
(e) the place where such Securities are to be surrendered for payment of the Redemption
Price, and accrued interest, if any, and
(f) that the redemption is for a sinking fund, if that be the case.
Notice of redemption of the Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request made at least 35 days period to the redemption
date, by the Trustee in the name and at the expense of the Company upon Trustees receipt from the
Company of the form of such notice containing the information required under Section 4.04 above.
Section 4.05.
Deposit of Redemption Price.
On or before 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 12.03 hereof) an amount of money sufficient to pay the Redemption Price of, and
accrued interest, if any, on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 4.06.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities or portions thereof so to
be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price thereof
together with accrued interest, if any, thereon to the Redemption Date, and from and after such
date (unless the Company shall default in the payment of the Redemption Price and such accrued
interest, if any) such Securities or portions thereof shall cease to bear interest. Upon surrender of such Securities for redemption in accordance with
said notice such Securities or specified portions thereof shall be paid by the Company at the
Redemption Price, together with any accrued interest to the Redemption Date. Installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities registered as such on the relevant record dates according to their terms
and the provisions of Section 3.08 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof on such
Redemption Date, the principal and premium, if any, shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
Section 4.07.
Securities Redeemed in Part.
Security of any series which is to be redeemed only in part shall be surrendered at the Place
of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver, or cause to be authenticated and delivered, to the Holder
of such Security without service charge, a new Security or Securities of the same series of any
authorized denomination as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal amount of the Security so surrendered.
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ARTICLE FIVE
SINKING FUNDS
Section 5.01.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities except as otherwise established as contemplated by Section 3.01 for Securities of any
series.
The minimum amount of any sinking fund payment established as contemplated by Section 3.01 for
Securities of any series is herein referred to as a mandatory sinking fund payment, and any
permitted payment in excess of such minimum amount established as contemplated by Section 3.01 for
Securities of any series is herein referred to as an optional sinking fund payment.
Section 5.02.
Satisfaction of Mandatory Sinking Fund Payments with Securities.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities
of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit
for the principal amount of Securities of that series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities;
provided
that
such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 5.03.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for the Securities of any
series, the Company will deliver to the Trustee a certificate signed by the Treasurer or any
Assistant Treasurer of the Company specifying the amount of such next ensuing mandatory sinking
fund payment, the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting Securities of such
series pursuant to Section 5.02 (which Securities will accompany such certificate) and whether the
Company intends to make any permitted optional sinking fund payment in connection therewith. Such
certificate shall also state that no Event of Default has occurred and is continuing with respect
to Securities of such series. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. In the case of the failure of the Company to
deliver such certificate when due (or to deliver the Securities specified in this Section 5.03) the
sinking fund payment due on the next succeeding sinking fund payment date for Securities of that
series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the
27
option to deliver or credit
Securities as provided in Section 5.02 and without the right to make any optional sinking fund
payment, in connection therewith.
Any sinking fund payment or payments (mandatory or optional) with respect to the Securities of
any particular series made in cash plus any unused balance of any preceding sinking fund payments
with respect to Securities of such series made in cash which shall equal or exceed $100,000 or the
equivalent thereof in the Foreign Currency in which such series is denominated (or a lesser sum if
the Company shall so request) shall be applied by the Trustee on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption of such Securities
at the Redemption Price specified in such Securities for operation of the sinking fund together
with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so
applied or allocated by the Trustee to the redemption of such Securities shall be added to the next
cash sinking fund payment received by the Trustee for Securities of such series and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.03. Any and all
sinking fund moneys with respect to the Securities of any particular series held by the Trustee on
the last sinking fund payment date with respect to Securities of such series and not held for the
payment or redemption of particular Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal
of the Securities of such series at Maturity.
The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in the first paragraph of Section 4.03 hereof and the Company shall cause
notice of the redemption thereof to be given in the manner provided in
Section 4.04 hereof. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 4.06 and 4.07 hereof.
On or before any sinking fund payment date, the Company shall deposit with the Trustee an
amount of money sufficient to pay any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 5.03.
The Trustee shall not redeem any Securities of any series with sinking fund moneys or mail any
notice of redemption of Securities of such series by operation of the sinking fund therefor during
the continuance of a default in payment of interest on Securities of such series or of any Event of
Default (other than an Event of Default occurring as a consequence of this paragraph) with respect
to Securities of such series, except that if the notice of redemption of any Securities of such
series shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article. Except as aforesaid, any
moneys in the sinking fund for Securities of such series at the time when any such default or Event
of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the payment of such
Securities;
provided, however,
that in case such Event of Default or default shall have been cured
or waived as, provided herein, such moneys shall thereafter be
28
applied on the next sinking fund
payment date for such Securities on which such moneys may be applied pursuant to the provisions of
this Section 5.03.
ARTICLE SIX
SATISFACTION AND DISCHARGE
Section 6.01.
Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with respect to the Securities of any
series (except as to the rights of Holders of Outstanding Securities of such series to receive,
from the trust funds described in paragraph (a) of this Section 6.01, payment of the principal of,
premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of
such principal, premium, if any, or installment of interest, if any, the Companys obligations with
respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as
may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder), and the Trustee for the Securities of such
series, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such
series, when
(a) either
(i) all the Securities of such series theretofore authenticated and delivered
(other than (A) Securities of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 hereof
and (B) Securities of such series for whose payment money has theretofore been
deposited with the Trustee or the Paying Agent for the Securities of such series 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 6.05 hereof) have been
delivered to such Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to such Trustee
for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to such Trustee for the giving of notice of
redemption by such Trustee in the name, and at the expense, of the
Company,
and the Company has deposited or caused to be deposited with such Trustee
irrevocably as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of all Outstanding Securities of
29
such series, with reference to this Section 6.01, (i) money in an amount in the
currency in which the Securities of such series are denominated or (ii) U.S.
Government Obligations in the case of Securities denominated in Dollars or
obligations issued or guaranteed by the government which issued the currency in
which the Securities of such series are denominated in the case of Securities
denominated in Foreign Currencies, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide, not later
than the opening of business on the due date of any payment referred to below, money
in an amount in the currency in which the Securities of such series are denominated,
or (iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on all Outstanding Securities of such series not theretofore delivered
to such Trustee for cancellation, for principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities of such series which
have become due and payable), or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company in connection with Outstanding Securities of such series, including all fees and
expenses of the Trustee for such series; and
(c) the Company has delivered to such 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 with respect to the
Securities of any series, the obligations of the Company with respect to Securities of any other
series and to the Trustee for the Securities of such series under Section 8.07 hereof shall
survive.
Section 6.02.
Satisfaction, Discharge and Defeasance of Securities of any Series.
Unless otherwise established, as contemplated by Section 3.01, with respect to Securities of
any series, the Company shall, notwithstanding Section 6.01, be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Securities of any such series from and after the
ninety-first day after the date of the deposit referred to in paragraph (a) below, the provisions
of this Indenture (except as to the rights of Holders of Outstanding Securities of such series to
receive, from the trust funds described in paragraph (a) below, payment of the principal of,
premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of
such principal, premium, if any, or installment of interest, if any, the Companys obligations with
respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as
may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder) shall no longer be in effect in respect of
Outstanding Securities of such series, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such indebtedness;
provided
that the following conditions shall have been satisfied:
30
(a) the Company is permitted pursuant to Article Thirteen to deposit or cause to be
deposited and has deposited or caused to be deposited with the Trustee irrevocably as trust
funds in trust, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of all Outstanding Securities of such series, with reference to this Section
6.02, (i) money in an amount in the currency in which the Securities of such series are
denominated or (ii) U.S. Government Obligations in the case of Securities denominated in
Dollars or obligations issued or guaranteed by the government which issued the currency in
which the Securities are denominated in the case of Securities denominated in Foreign
Currencies, which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than the opening of business on the due
date of any payment referred to in this paragraph (a), money in an amount in the currency in
which the Securities of such series are denominated, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge
the entire indebtedness on all Outstanding Securities of such series for principal, premium,
if any, and interest, if any, to the Stated Maturity as such principal, premium, if any, or
interest, if any, becomes due and payable in accordance with the term of this Indenture and
the Securities of such series;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company in connection with the Outstanding Securities of such series, including all fees and
expenses of the Trustee for such series; and
(c) 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 on all Outstanding
Securities of such series have been complied with.
Section 6.03.
Application of Trust Money.
(a) Subject to the provisions of Section 6.05, all money, U.S. Government Obligations
and other government obligations deposited with the Trustee for the Securities of any series
pursuant to Section 6.01 or 6.02, and all money received by the Trustee in respect of U.S.
Government Obligations and such other government obligations deposited with the Trustee for
the Securities of any series pursuant to Section 6.01 or 6.02 shall be held in trust and
applied by it, in accordance with the provisions of the Securities of such series 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 of, premium, if any, and interest, if any, on the
Securities of such series; but such money need not be segregated from other funds except to
the extent required by law and the Trustee shall have no liability to pay interest thereon
or for the investment thereof. Money and securities so held in trust are not subject to
Article Thirteen.
(b) The Trustee shall deliver or pay to the Company from time to time upon Company
request any U.S. Government Obligations, other government obligations or money held by it as
provided in Sections 6.01 and 6.02 which, in the opinion of a
31
nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government Obligations, other government
obligations or money were deposited or received.
Section 6.04.
Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then held by any Paying Agent
under the provisions of this Indenture shall, upon demand of the Company, be repaid to it or paid
to the appropriate Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 6.05.
Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any Paying Agent for the Securities of any
series pursuant to this Article, or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on Securities of such series and not applied
but remaining unclaimed by the Holders of Securities of such series for two years after the date
upon which the principal of and premium, if any, or interest, if any, on such Securities, as the
case may be, shall have become due and payable, shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by such Trustee or any Paying Agent on demand or (if then held by the Company) shall be discharged
from such trust; and the Holder of any such Securities entitled to receive such payment shall
thereafter look only to the Company for the payment thereof;
provided
,
however
, that, before being required to make any such repayment, such Trustee may
(at the expense of the Company) cause to be published once a week for two successive weeks, in each
case on any day of the week, in an Authorized Newspaper in the same city in which the Place of
Payment with respect to Securities of such series shall be located and in an Authorized Newspaper
in the Borough of Manhattan, The City of New York, a notice (in such form as may be deemed
appropriate by such Trustee) that said moneys remain unclaimed and that, after a date named
therein, any unclaimed balance of said moneys then remaining will be returned to the Company.
ARTICLE SEVEN
REMEDIES
Section 7.01.
Events of Default
.
Event
of Default
whenever used herein with respect to Securities of any series means any one
of the following events and such other events as may be established with respect to the Securities
of such series as contemplated by Section 3.01 hereof, continued for the period of time, if any,
and after the giving of notice, if any, designated herein or therein, as the case may be, unless
the same is either not applicable to the Securities of such series or is deleted or modified in the
terms of the Securities of such series established as contemplated by Section 3.01 hereof:
32
(a) default in the payment of any interest upon any Security of such series when the
same becomes due and payable, whether or not such payment shall be prohibited by Article
Thirteen, 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
(b) default in the payment of all or any part of the principal of (or premium, if any,
on) any Security of such series at its Maturity, whether or not such payment shall be
prohibited by Article Thirteen; or
(c) default in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due and payable by the terms of the Securities of such
series; or
(d) default in the performance, or breach, of any covenant or warranty of the Company
in respect of the Securities of such series contained in this Indenture or in such
Securities (other than a covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section 7.01 specifically
dealt with) or established as contemplated by Section 3.01 hereof for the Securities of such
series, and continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee for the
Securities of such series, or to the Company and such Trustee by the Holders of at least 25%
in principal amount of the Outstanding 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; or
(e) the entry of a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under Title 11 of the United States Code as now constituted or hereafter amended
(the
Federal Bankruptcy Code
) or any other applicable Federal or State law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or
the consent by it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in furtherance of any
such action; or
33
(g) any other Event of Default established as contemplated by Section 3.01 hereof for
Securities of such series.
Section 7.02.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time outstanding occurs
and is continuing, then and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities of such series may
declare the principal amount (or, if the 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 all the 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 Holders), and upon any such declaration of acceleration
the same shall become immediately due and payable, anything in this Indenture or in the Securities
of such series or any resolution of the Board of Directors relating thereto contained to the
contrary notwithstanding.
At any time after such a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained or entered as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may waive all defaults with respect to
such Securities and rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue installments of interest, if any, on all Securities of such
series;
(ii) the principal of (and premium, if any, on) any and all Securities of such
series which have become due otherwise than by such declaration of acceleration and
interest thereon at the Overdue Rate applicable to the Securities of such series;
(iii) to the extent that payment of such interest is lawful, interest upon any
overdue installment of interest at the Overdue Rate applicable to the Securities of
such series;
(iv) 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 other amounts owing the Trustee under Section 8.07; and
(b) all Events of Default with respect to Securities of such series, other than the
non-payment of the principal of Securities which have become due solely by such
acceleration, have been cured or waived as provided in
Section 7.13 or 12.07 hereof.
34
No such waiver and rescission shall affect any subsequent default or impair any right consequent
thereon.
Section 7.03.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any installment of interest on any Security of
any series when such interest becomes due and payable and such default continues for a
period of 30 days,
(b) default is made in the payment of all or any part of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof, or
(c) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due pursuant to the terms of the Securities of
any series established as contemplated by Section 3.01,
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holder of
any such Security (or Holders of Securities of any such series in the case of clause (c) above),
the whole amount then due and payable on any such Security (or Securities of any such series in the
case of clause (c) above) for principal, premium, if any, and interest, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of such interest shall
be legally enforceable, upon any overdue installment of interest, at the Overdue Rate of any
such Security (or Securities of any such series in the case of clause (c) above); 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 such Trustee, its
agents and counsel, and all other amounts owing the Trustee under Section 8.07.
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 or final decrees, and may
enforce the same against the Company or any other obligor upon such Securities 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 Securities, wherever situated.
If an Event of Default occurs and is continuing with respect to the Securities of any series,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of the Securities of such series by such appropriate judicial proceedings as such 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 7.04.
Trustee May File Proofs of Claim.
The Trustee (irrespective of whether the principal of the Securities of any series shall then
be due and payable as therein expressed or by declaration or otherwise and irrespective
35
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 proceeding or otherwise, in case
of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities of such series or the property of the Company or of such other
obligor or their creditors,
(a) to file and prove a claim or claims for the whole amount of principal (or, if the
Securities of such series are Original Issue Discount Securities, such portion of the
principal amount as may be due and payable with respect to such series pursuant to a
declaration in accordance with Section 7.02 hereof), premium, if any, and interest, if any,
owing and unpaid in respect of the Securities of such series 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 of the Securities of such series
allowed in such judicial proceeding, and
(b) 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, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee,
and in the event that such Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to 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 8.07 hereof.
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 Securities of any series 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 7.05.
Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the Securities of any series may be
prosecuted and enforced by the Trustee without the possession of any of the Securities of such
series 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 Securities in respect of which such judgment has been recovered.
Section 7.06.
Application of Money Collected.
Any moneys 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 (or premium, if any) or interest, if any, upon presentation of
36
the several
Securities with respect to which such moneys were collected, 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 8.07
hereof.
SECOND: To holders of Senior Indebtedness of the Company to the extent
required by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid upon such
Securities for principal (and premium, if any) and interest, if any, 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 Securities for
principal (and premium, if any) and interest, if any, respectively.
FOURTH:The balance, if any, to the Company.
Section 7.07.
Limitation on Suits.
No Holder of any Security of any series 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 other similar official), or for any other remedy hereunder, unless
(1) an Event of Default shall have occurred and be continuing and such Holder
previously shall have given to the Trustee written notice of default with respect to
the Securities of such series and of the continuance thereof;
(2) the Holders of not less than 25% in principal amount of the Outstanding
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 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 Securities of such series;
it being understood and intended that no one or more Holders of Securities of such series 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 Holders of Securities of such
series, or to obtain or to seek to obtain priority or preference over any other such Holders or to
37
enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders of the Securities of such series.
Section 7.08.
Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision of this Indenture, the Holder of a Security of any series
shall have the right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Section 3.08) interest, if any, on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 7.09.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and such Holder 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 such Trustee and such Holder shall continue as though no such proceeding had been
instituted.
Section 7.10.
Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders of the
Securities of any series 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 7.11.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of the Holders of the Securities of any series 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 such Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by such Holders, as the
case may be.
Section 7.12.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding 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,
provided
that
38
(a) such direction shall not be in conflict with any rule of law or with this
Indenture, unduly prejudice the rights of the Holders or involve the Trustee in personal
liability, cost or expense for which it determines it has insufficient security or indemnity
(it being understood that the Trustee shall have no obligation to make any determination
with respect to such conflict, prejudice or liability), and
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 7.13.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default
(a) in the payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series, or in the payment of any sinking fund installment or analogous
obligation with respect to the Securities of such series, or
(b) in respect of a covenant or provision hereof which under Article Eleven hereof
cannot be modified or amended without the consent of the Holder of each Outstanding Security
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 7.14.
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of a Security 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 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 due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 7.14 shall not apply to any suit instituted by such
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 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, if any, on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
Section 7.15.
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
39
advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE EIGHT
THE TRUSTEE
Section 8.01.
Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities
of any series,
(i) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of such
series and all other series, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect to the
Securities of any series, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to the Securities of such series, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct,
except
that
(i) this Subsection shall not be construed to limit the effect of Subsection
(a) of this Section 8.01;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in respect of the Securities of any series in
40
good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of such series pursuant to Section
7.12 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture; and
(iv) 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.
(d) 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 8.01.
Section 8.02.
Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of the Securities of such series, as
their names and addresses appear in the Securities Register, notice of such default hereunder with
respect to the Securities of such series known to the Trustee, unless such default
shall have been cured or waived;
provided, however
, that, except in the case of a default in
the payment of principal of (or premium, if any) or interest, if any, on any Security of such
series, or in the payment of any sinking fund installment or analogous obligation in respect
thereof, 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 determine that the withholding of such notice is in the interest of such
Holders; and
provided, further
, that in the case of any default of the character specified in
Section 7.01(d) hereof no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section 8.02, the term
default
means any event which
is, or after notice or lapse of time or both would become, an Event of Default.
Section 8.03.
Certain Rights of Trustee.
Subject to Section 8.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, 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, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
41
(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 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, order or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to such 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 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;
(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;
(h) except with respect to Section 12.01, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to covenants contained in Article 12. In
addition, the Trustee shall not be deemed to have knowledge of an Event of Default except
(i) any default or Event of Default occurring pursuant to Sections 12.01, 7.01(a) or 7.01(b)
or (ii) any default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge; and
(i) delivery of reports, information and documents to the Trustee under Section 9.04 is
for informational purposes only and the Trustees receipt of the foregoing shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Companys compliance with any of their
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers
Certificates).
Section 8.04.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee and any
Authenticating Agent assume no responsibility for their correctness. The Trustee and any
Authenticating Agent make no representations as to the validity or sufficiency of this Indenture
42
or of the Securities. The Trustee and any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 8.05.
May Hold Securities.
The Trustee, any Paying Agent, Securities Registrar, Authenticating Agent or any other agent
of the Company or the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities of any series and may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such
other agent.
Section 8.06.
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on or investment
of any money received by it hereunder except as otherwise agreed with the Company and for the sole
benefit of the Company.
Section 8.07.
Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) 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 and of any
Authenticating Agent), except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and its agents for, and to hold them harmless against, any
loss, liability or expense arising out of or in connection with the acceptance or
administration of this trust and performance of their duties hereunder, including the costs
and expenses (including fees and disbursements of their counsel) of defending themselves
against any claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except as to the Trustee or any agent to the extent any
such loss, liability or expense may be attributable to its own negligence or bad faith.
As security for the performance of the obligations of the Company under this Section 8.07, the
Trustee shall have a lien prior to the Securities 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, if any, on particular Securities. The provisions of this Section 8.07 shall
survive any Trustee succession and the satisfaction and discharge of this Indenture.
Trustee
for
purposes of this Section 8.07 shall include any predecessor trustee but the
43
negligence and bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 8.07.
Section 8.08.
Disqualification; Conflicting Interests.
Reference is made to Section 310(b) of the Trust Indenture Act. For purposes of Section
310(b)(l) of the Trust Indenture Act no Trustee shall be deemed to have a conflicting interest by
virtue of being Trustee for the Securities of more than one series.
Section 8.09.
Corporate Trustee Required; Different Trustees for Different Series;
Eligibility.
There shall at all times be a Trustee hereunder for the Securities of each series which shall
be a corporation organized and doing business under the laws of the United States of America or of
any State or the District of Columbia authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, and, if there is such a corporation that has a corporate
trust office in the Borough of Manhattan, The City of New York, the State of New York, or in such
other city as shall be established as contemplated by Section 3.01 with respect to the Securities
of any series that is willing to act upon reasonable and customary terms, having a corporate trust
office in the Borough of Manhattan or such other city. 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 8.09, 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. A
different Trustee may be appointed by the Company for the Securities of each series prior to the
issuance of such Securities. If the initial Trustee for the Securities of any series is to be other
than U.S. Bank National Association (or its successor in interest
hereunder, if any), the Company and such Trustee shall, prior to the issuance of
such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the
appointment of such Trustee as Trustee for the Securities of such series and 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. If at any time the
Trustee for the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section 8.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 8.10.
Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no
appointment of a successor Trustee for the Securities of such series pursuant to this
Article shall become effective until the acceptance of appointment by the successor Trustee
under Section 8.11 hereof.
44
(b) The Trustee, or any Trustee or Trustees hereafter appointed for the Securities of
any series, may resign at any time with respect to the Securities of one or more or all such
series by giving written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee for the Securities of any series shall not have been delivered to the
Trustee for the Securities of such series within thirty 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 for the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with
respect to one or more or all such series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such one or more series (each voting as a
class) delivered to such Trustee and to the Company.
(d) If at any time:
(i) the Trustee for the Securities of any series shall fail to comply with
Section 310(b) of the Trust Indenture Act with respect to the Securities of such
series after written request therefor by the Company or by any Holder of Securities
of such series who has been a bona fide Holder of a Security of such series for at
least six months, or
(ii) such Trustee shall cease to be eligible under Section 8.09 hereof and
shall fail to resign after written request therefor by the Company or by any such
Holder of Securities, or
(iii) such Trustee shall become incapable of acting with respect to the
Securities of such series or shall be adjudged a bankrupt or insolvent or a receiver
of such Trustee or of its property shall be appointed or any public officer shall
take charge or control of such Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the Trustee, or (2)
subject to Section 7.14 hereof, any Holder of a Security of such series who has been a bona fide
Holder of such Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee for the Securities of such series.
(e) If the Trustee for the Securities of any series shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities
of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee for the Securities of such series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
for the Securities of such series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee for the Securities of such
series and supersede the successor Trustee appointed by the
45
Company. If no successor Trustee
for the Securities of such series shall have been so appointed by the Company or such
Holders and accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee for the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee
for the Securities of any series and each appointment of a successor Trustee for the
Securities of such series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of the Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall include the name of such
successor Trustee and the address of its Corporate Trust Office.
Section 8.11.
Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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, subject nevertheless to its lien, if
any, provided for in Section 8.07 hereof. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certain vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee for the Securities of one or more
(but not all) series, the Company, the predecessor Trustee and each successor Trustee for the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee for the Securities of any series
as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor
Trustee, and 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.
No successor Trustee for the Securities of any series shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under Section 8.09.
46
Section 8.12.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding
to all or substantially all of the corporate trust business of such Trustee, shall be the successor
of the Trustee for such series hereunder,
provided
such corporation shall be, with respect to such
series, otherwise qualified and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any Securities of any
series shall have been authenticated, but not delivered, by the Trustee for such series or an
Authenticating Agent for such series, then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Section 8.13.
Preferential Collection of Claims against Company.
Reference is made to Section 311 of the Trust Indenture Act, for purposes of which:
(i) The term
cash transaction
means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(ii) The term
self-liquidating paper
means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the Company
for the purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by documents
evidencing title to possession of, or a lien upon, the goods, wares or merchandise
or the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided
the security is received
by the Trustee simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or incurring of the draft,
bill of exchange, acceptance or obligation.
Section 8.14.
Authenticating Agent.
The Trustee may appoint an Authenticating Agent for the Securities of each series which shall
be acceptable to the Company, to act on behalf of such Trustee and subject to its direction in
connection with the authentication of the Securities of such series. Each Authenticating Agent
shall at all times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal or State authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
47
supervising or examining
authority, then for the purposes of this Section 8.14 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.
Securities of any series authenticated by the Authenticating Agent for the Securities of such
series shall be entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee for the Securities of such series. Whenever
reference is made in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or such Trustees certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by the Authenticating Agent for the
Securities of such series and a certificate of authentication executed on behalf of the Trustee by
such Authenticating Agent.
Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to the Securities of all series for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent may at any time resign 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 for the Securities of any series 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 any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.14, with respect to the Securities of one or more
or all series, the Trustee promptly shall appoint a successor Authenticating Agent which shall be
acceptable to the Company, and upon doing so shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all Holders of the Securities of such series
as the names and addresses of such Holders appear upon the Securities Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder with like effect as if
originally appointed as Authenticating Agent hereunder. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.14.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments
subject to the provisions of Section 8.07 hereof.
48
ARTICLE NINE
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 9.01.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (a) semi-annually, on a date
not more than 15 days after each regular record date with respect to an Interest Payment Date, if
any, for the Securities of each series, and (b) on semi-annual dates in each year to be established
as contemplated by Section 3.01 hereof if the Securities of any series do not bear interest and (c)
at such other times as the Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list in such form as the Trustee may reasonably require containing
all the information in the possession or control of the Company, or any of its Paying Agents other
than the Trustee, as to the names and addresses of the Holders of the Securities of such series,
obtained since the date as of which the next previous list, if any, was furnished. Any such list
may be dated as of a date not more than 15 days prior to the time such information is furnished or
caused to be furnished and need not include information received after such date;
provided
,
however
, that as long as the Trustee is the Securities Registrar for the Securities of such series,
no such list shall be required to be furnished.
Section 9.02.
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 the Securities of each series contained in the most recent
list furnished to such Trustee as provided in Section 9.01 hereof or in the Securities
Register if such Trustee be the Securities Registrar for such series and the names and
addresses of Holders received by the Trustee in its capacity as Paying Agent
for the Securities of such series. The Trustee may destroy any list furnished to it as
provided in Section 9.01 hereof upon receipt of a new list so furnished.
(b) If three or more Holders of the Securities of any series (hereinafter referred to
as
applicants
) apply in writing to the Trustee, furnish to the Trustee reasonable proof
that each such applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of the Securities of any series with
respect to their rights under this Indenture or under the Securities of any series and is
accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at the time by
the Trustee in accordance with Subsection (a) of this Section 9.02, or
(ii) inform such applicants as to the approximate number of such Holders whose
names and addresses appear in the information preserved at the time by the Trustee
in accordance with Subsection (a) of this Section 9.02, and as
49
to the approximate
cost of mailing to such Holders the form of proxy or other communication, if any,
specified in such application.
(c) If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall upon the written request of such applicants, mail to each
Holder to whom the applicant desires to communicate whose name and address appear in the
information preserved at the time by such Trustee in accordance with Subsection (a) of this
Section 9.02, a copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interests of such Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and shall enter
an order so declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(d) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee, nor any agent of the
Company or the Trustee, shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Subsection (b) of this Section 9.02, regardless of the source from
which such information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Subsection (b) of this
Section 9.02.
Section 9.03.
Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not less than 60 days following
the first date of issuance of the Securities of any series under this Indenture and within
60 days after May 15 in every year thereafter, the Trustee shall transmit by mail to all
Holders of such series, as their names and addresses appear in the Securities Register, any
brief report, dated as of such May 15, required by Section 313(a) of the Trust Indenture Act
and at such other times in such manner such other reports as may be required by Section 313
of the Trust Indenture Act in each case with respect to the Securities of such series. A
copy of each such report shall, at the time of such transmission to such Holders, be filed
by such Trustee with each stock exchange upon which such Securities are listed and also with
the Commission. The Company will notify such Trustee when such Securities are listed on any
stock exchange.
50
Section 9.04.
Reports by Company.
The Company will
(a) file with the Trustee for the Securities of each series, within 15 Business Days
after the Company files the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations prescribe) which
the Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with such Trustee and the
Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act of in respect of a security
listed and registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with such Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses appear in the
Securities Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section 9.04 as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) Notwithstanding the foregoing Section 9.04(a) and (b), the Company will be deemed
to have filed the reports required by Section 9.04(a) and (b) to the Trustee if it has filed
such reports with the SEC via the EDGAR filing system and such reports are publicly
available.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 10.01.
Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease all or substantially all of its properties and assets to any Person or group of Persons other
than to a direct or indirect wholly-owned Subsidiary, unless:
(1) the Person formed by such consolidation or into which the Company is merged
or the Person or group of Persons that acquires by conveyance or transfer, or which
leases, all or substantially all of the properties and assets of the Company shall
be a Person organized and existing under the
51
laws of the United States of
America, any State thereof or the District of Columbia, and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee for the
Securities of each series in form satisfactory to such Trustee, the due and punctual
payment of the principal of and interest on all the Securities 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 that, after notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing other than an Event of Default which
will be cured by such merger or other transaction; and
(3) the Company has delivered to such Trustee an Officers Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection with
such transaction, and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have been
complied with.
The provisions of this Section 10.01 shall not be applicable to a merger or consolidation in
which the Company is the surviving corporation.
Section 10.02.
Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets
of the Company substantially as an entirety in accordance with Section 10.01, the successor Person
formed by such consolidation or into which the Company is merged or to which such conveyance or
transfer 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 Person had been
named as the Company herein, and thereafter the predecessor Person shall be relieved of all
obligations and covenants under the Indenture and the Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
Section 11.01.
Supplemental Indentures without Consent of Holders.
(a) Without the consent of any Holders, the Company, when authorized by 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:
(i) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in the
Securities contained; or
52
(ii) to add to or modify the covenants or Events of Default of the Company, for
the benefit of the Holders of the Securities of any or all series, to convey,
transfer, assign, mortgage or pledge any property to or with such Trustee, or to
surrender any right or power herein conferred upon the Company; or
(iii) to make any change in Article Thirteen that would limit or terminate the
benefits available to any holder of Senior Indebtedness of the Company (or
Representatives thereof) under Article Thirteen; or
(iv) to establish the form and terms of the Securities of any series as
contemplated by Section 2.01 or 3.01 hereof; or
(v) to add to or change any of the provisions of this Indenture as is necessary
or advisable to facilitate the issuance of Securities of any series in bearer form,
registrable or nonregistrable as to principal and with or without interest coupons,
and to provide for exchangeability of such Securities with the Securities of the
same series issued hereunder in fully registered form and to make all appropriate
changes for such purpose, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(vi) to cure any ambiguity, to correct or supplement any provision herein which
may be defective or inconsistent with any other provision herein; or
(vii) to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the Holders
in any material respect; or
(viii) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Article Six, provided that any such action shall
not adversely affect the interests of the Holders of Securities of such series or
any other series of Securities in any material respect;
(ix) to add to or change 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 of, or premium, if any, or interest on
bearer Securities or on the delivery of bearer Securities, or to permit bearer
Securities to be issued in exchange for bearer Securities of other authorized
denominations,
provided
any such action shall not adversely affect the interests of
the Holders of bearer Securities of any series or any related coupons in any
material respect unless such amendment is required to comply with the Bearer Rules;
or
(x) to evidence and provide for the acceptance of appointment hereunder of a
Trustee other than U.S. Bank National Association (or its successor
in interest hereunder, if any), as Trustee for the Securities of
any series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
53
administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 8.09 hereof; or
(xi) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series or 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 8.11 hereof; or
(xii) to add to, change or eliminate any of the provisions of this Indenture;
provided
, that any such addition, change or elimination (i) shall become effective
only when no Security of any series entitled to the benefits of such provision and
issued prior to the execution of such supplemental indenture is outstanding or (ii)
shall not apply to any outstanding Security.
(b) An amendment under this Section 11.01 may not make any change that adversely
affects the rights under Article Thirteen of any holder of Senior Indebtedness of the
Company then outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
Section 11.02.
Supplemental Indentures with Consent of Holders.
Subject to Sections 7.12 and 7.13 hereof, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each series affected
thereby, by Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by 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 of the Securities of such series under this Indenture;
provided
,
however
, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of interest on,
any Security, or reduce the principal amount thereof or the interest thereon, or any premium
payable on the redemption thereof, or change the Place of Payment, or the coin or currency
in which any Security or the interest, if any, thereon is payable, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and payable upon an
acceleration of the Maturity thereof or adversely affect the right of repayment, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed for, any
payment under the sinking fund for any Security, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding 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
54
provisions of
this Indenture or certain defaults hereunder and their consequences provided for in this
Indenture, or
(c) modify the provisions of this Indenture with respect to the subordination of the
Securities of any series in a manner adverse to the Holders thereof, or
(d) modify any of the provisions of this Section 11.02 or Section 7.13 hereof, 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 Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of the Securities of one or more
particular series, or which modifies the rights of the Holders of the Securities of one or more
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 the Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 11.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
An amendment under this Section 11.02 may not make any change that adversely affects the
rights under Article Thirteen of any holder of Senior Indebtedness then outstanding unless the
holders of such Senior Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
Section 11.03.
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 for the Securities of any series shall be entitled to receive, and (subject to Sections
8.01 and 8.03 hereof) 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. Such
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects such Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 11.04.
Notice of Supplemental Indenture.
Promptly after the execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 11.02 hereof, the Company shall transmit by mail to all Holders of
Securities of any series affected thereby, as their names and addresses appear in the Securities
Register, a notice setting forth in general terms the substance of such supplemental indenture.
55
Section 11.05.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this indenture shall be
modified in accordance therewith but only with respect to the Securities of each series affected by
such supplemental indenture, and such supplemental indenture shall form a part of this Indenture
for all purposes with respect to the Securities of such series; and every Holder of Securities of
any such series theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 11.06.
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 11.07.
Reference in Securities to Supplemental Indentures.
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 Securities 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 or on behalf of such Trustee in exchange for Outstanding
Securities of the same series.
ARTICLE TWELVE
COVENANTS
Section 12.01.
Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of, premium, if any, and interest, if
any, on the Securities of each series in accordance with the terms of such Securities established
as contemplated by Section 3.01 and this Indenture.
Section 12.02.
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for the Securities of any series, an office
or agency where Securities of such series may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of such series and this
Indenture may be served;
provided
,
however
, that at the option of the Company payment of interest
may be made (subject to collection) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register. With respect to the Securities of any
series, such office or agency and each Place of Payment shall be as established as contemplated by
Section 3.01. In the absence of establishment as contemplated by Section 3.01 with respect to the
Securities of any series, (i) the Place of Payment for such Securities shall be in the city that
the Corporate Trust Office shall be in and (ii) such office or agency in such Place of Payment
shall initially be the Corporate Trust Office of the Trustee. The
56
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 for the Securities of each series
with the address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of such Trustee, and the Company hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands with respect to the
Securities of such series.
The Company may also from time to time designate one or more other offices or agencies (in or
outside the Place of Payment) where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above, 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 such
purpose.
Section 12.03.
Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of (and premium, if any) or interest, if any, on, any of the Securities of
any series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest, if any, 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 such series of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or before each due date
of the principal of (and premium, if any) or interest, if any, on, any Securities of any series,
deposit with a Paying Agent for the Securities of such series a sum sufficient to pay the
principal, premium, if any, or interest, if any, so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, if any, and (unless
such Paying Agent is the Trustee for the Securities of such series) the Company will promptly
notify such Trustee at its Corporate Trust Office of its failure so to act.
The Company will cause each Paying Agent for the Securities of any series 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 12.03, that such Paying Agent will
(a) hold all sums held by it for the payment of the principal of, premium, if any, or
interest, if any, on the Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give such Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any payment of principal, premium, if any,
or interest, if any; and
57
(c) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
such 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 such Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Section 12.04.
Statement as to Compliance.
The Company will file with the Trustee within four months after the close of each fiscal year
(which, until the Company shall otherwise notify the Trustee, shall be deemed to be the calendar
year) a brief certificate, which need not comply with Section 1.02 hereof, from the principal
executive, financial or accounting officer of the Company as to his or her knowledge of the
Companys compliance with all conditions and covenants under this Indenture (without regard to any
period of grace or requirement of notice provided in this Indenture).
Section 12.05.
Corporate Existence.
Subject to Article Ten hereof, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 12.06.
Permit No Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee for
the Securities of any series, will appoint, in the manner provided in Section 8.10 hereof, a
Trustee for the Securities of such series, so that there shall at all times be a Trustee for the
Securities of every series hereunder.
Section 12.07.
Waiver.
Without limitation of the rights of the Holders and the Company with respect to waivers and
amendments set forth in Sections 7.13 and 11.02, the Company may omit in any particular instance to
comply with a covenant or provision hereof which non-compliance could constitute a default
hereunder (other than (i) a covenant or provision with respect to the payment of the principal of
(or premium, if any) or interest, if any, on any Security of any series, or in payment of any
sinking fund installment or analogous obligation with respect to the Securities of such series or
(ii) a covenant or provision which under Article Eleven hereof cannot be modified or amended
without the consent of the Holder of each Outstanding Security affected), if before or after the
time for such compliance the Holders of at least a majority in principal amount of the Securities
at the time Outstanding of any series affected by the omission shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with such covenant or
provision, but no such waiver shall extend to or affect such covenant or provision except to the
extent so expressly waived, and, until such waiver shall become effective, the
58
obligations of the Company and the duties of the Trustee in respect of any such covenant or
provision shall remain in full force and effect.
ARTICLE THIRTEEN
SUBORDINATION OF THE SECURITIES
Section 13.01.
Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article Thirteen, to the prior payment in full of all existing and future Senior
Indebtedness of the Company and that the subordination is for the benefit of and enforceable by the
holders of such Senior Indebtedness. All provisions of this Article Thirteen shall be subject to
Section 13.12.
Section 13.02.
Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of the Company to creditors upon a total or
partial liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the Company or its
property or upon an assignment by the Company for the benefit of creditors:
(a) holders of Senior Indebtedness of the Company shall be entitled to receive payment
in full in cash (or other consideration acceptable to the applicable holder of Senior
Indebtedness) of such Senior Indebtedness (including interest accruing after, or which would
accrue but for, the commencement of any such proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not a claim for such interest would be allowed)
before any payment or distribution (other than Permitted Junior Securities), whether in
cash, securities or other property, shall be made by the Company on account of principal,
interest or other amounts owing in respect of the Securities; and
(b) until the Senior Indebtedness of the Company is paid in full in cash (or other
consideration acceptable to the applicable holder of Senior Indebtedness), any payment or
distribution (other than Permitted Junior Securities), whether in cash, securities or other
property, to which Holders would be entitled but for this Article Thirteen shall be made to
holders of such Senior Indebtedness, for application to the payment thereof, as their
interests may appear, except that the Holders may receive and retain payments made from the
trust described under Article 6, so long as, on the date or dates the respective amounts
were paid into the trust such payments were made with respect to the Securities without
violating this Article Thirteen.
Section 13.03.
Default on Senior Indebtedness.
The Company may not pay principal of, premium (if any) or interest on, the Securities or make
any deposit pursuant to the provisions described under Section 6.02 and may not otherwise purchase,
redeem or otherwise retire any Securities (except that the Holders may
59
receive and retain (a) Permitted Junior Securities and (b) payments made from the trust
described under Article 6) (collectively,
pay the Securities
) if:
(a) a default in the payment of the principal of, premium, if any, or interest on any
Senior Indebtedness of the Company occurs and is continuing or any other amount owing in
respect of any Senior Indebtedness of the Company is not paid when due, or
(b) any other default occurs with respect to Senior Indebtedness of the Company and the
maturity of such Senior Indebtedness of the Company is accelerated in accordance with its
terms,
unless, in either case, the default has been cured or waived and any such acceleration has been
rescinded or such Designated Senior Indebtedness has been paid in full in cash (or other
consideration acceptable to the applicable holder of Senior Indebtedness).
Section 13.04.
Acceleration of Payment of Securities.
In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of Senior Indebtedness of the Company shall be entitled to
receive payment in full in cash (or other consideration acceptable to the applicable holder of
Senior Indebtedness) of such Senior Indebtedness (including interest accruing after, or which would
accrue but for, the commencement of any such proceeding at the rate specified in the applicable
Senior Indebtedness, whether or not a claim for such interest would be allowed) before any payment
or distribution, whether in cash, securities or other property, shall be made by the Company on
account of principal, interest or other amounts owing in respect of the Securities or on account of
purchase or other acquisition of Securities by the Company;
provided, however,
that nothing in this
Section 13.04 shall prevent the satisfaction of any sinking fund payment in accordance with this
Indenture or as otherwise specified for the Securities of any series by delivering and crediting
pursuant to Section 5.02 or as otherwise specified for the Securities of any series Securities
which have been acquired (upon redemption or otherwise) prior to such declaration of acceleration.
Section 13.05.
When Distribution Must Be Paid Over
.
If any distribution is made to the Trustee or to the Holders that because of this Article
Thirteen should not have been made to them, the Trustee or such Holders who receive the
distribution, as applicable, shall hold such distribution in trust for holders of Senior
Indebtedness of the Company and shall, upon the written instruction of the Company, pay it over to
them as their interests may appear. Nothing contained in this Article XIII or elsewhere in this
Indenture shall prevent (a) the Company, at any time except under the conditions specified in
sections 13.02, 13.03 and 13.04, from making payments at any time of principal of (and premium, if
any) or interest on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and premium, if any) or
interest on the Securities or the retention of such payment by the Holders if, at the time of such
application by the Trustee, the conditions specified in sections 13.02, 13.03 and 13.04 did not
exist.
60
Section 13.06.
Subrogation.
After all Senior Indebtedness of the Company is paid in full and until the Securities are paid
in full, the Holders shall, to the extent of the payments or distributions made to the holders of
Senior Indebtedness pursuant to this Article Thirteen, be subrogated (equally and ratably with all
other indebtedness as to which the right to receive payment is pari passu with the Securities) to
the rights of holders of such Senior Indebtedness to receive distributions applicable to Senior
Indebtedness of the Company. A distribution made under this Article Thirteen to holders of Senior
Indebtedness which otherwise would have been made to the Holders is not, as between the Company and
the Holders, a payment by the Company on such Senior Indebtedness.
Section 13.07.
Relative Rights.
This Article Thirteen defines the relative rights of the Holders and holders of Senior
Indebtedness of the Company. Nothing in this Indenture shall:
(a) impair, as between the Company and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest on the Securities in
accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness of the Company to receive
distributions otherwise payable to the Holders.
Section 13.08.
Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness of the Company to enforce the subordination of
the Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the
Company or by its failure to comply with this Indenture.
Section 13.09.
Rights of Trustee and Paying Agent.
Notwithstanding Section 13.03, the Trustee or any Paying Agent may continue to make payments
on the Securities and shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than two Business Days prior to the date
of such payment, a Responsible Officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article Thirteen. The Company, the Registrar, any Paying Agent,
a Representative or a holder of Senior Indebtedness of the Company may give the notice;
provided
,
however
, that, if an issue of Senior Indebtedness of the Company has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior Indebtedness of the
Company with the same rights it would have if it were not Trustee. The Registrar and any Paying
Agent may do the same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article Thirteen with respect to any Senior Indebtedness of the Company which may at any
time be held by it, to the same extent as any other holder of such Senior Indebtedness; and nothing
in Article 8 shall deprive the Trustee of any of its rights as such holder. Nothing in this
61
Article Thirteen shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 8.07 or any other Section of this Indenture.
Section 13.10.
Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness of
the Company, the distribution may be made and the notice given to their Representative (if any).
Section 13.11.
Article Thirteen Not to Prevent Events of Default or Limit Right to Accelerate.
The failure to make a payment pursuant to the terms of the Securities by reason of any
provision in this Article Thirteen shall not be construed as preventing the occurrence of a Default
in respect thereof. Nothing in this Article Thirteen shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Securities.
Section 13.12.
Trust Monies Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 6 by the Trustee and deposited at a time
when permitted by the subordination provisions of this Article Thirteen for the payment of
principal of and interest on the Securities shall not be subordinated to the prior payment of any
Senior Indebtedness of the Company or subject to the restrictions set forth in this Article
Thirteen, and none of the Trustee or the Holders shall be obligated to pay over any such amount to
the Company or any holder of Senior Indebtedness of the Company or any other creditor of the
Company.
Section 13.13.
Trustee Entitled to Rely.
Upon any payment or distribution pursuant to this Article Thirteen, the Trustee and the
Holders shall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction
in which any proceedings of the nature referred to in Section 13.02 are pending, (b) upon a
certificate of the liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Thirteen. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness of the Company to participate in any payment or distribution pursuant
to this Article Thirteen, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article Thirteen, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such
62
payment. The provisions of Sections 8.01 and 8.03 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article Thirteen.
Section 13.14.
Trustee to Effectuate Subordination.
Each Holder by accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Indebtedness of the Company as provided in this
Article Thirteen and appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 13.15.
Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to the Holders or the Company or any other Person money or assets to which any
holders of Senior Indebtedness of the Company shall be entitled by virtue of this Article Thirteen
or otherwise.
Section 13.16.
Reliance by Holders of Senior Indebtedness on Subordination Provisions.
Each Holder by accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness of the Company, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold,
such Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness of the Company may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders, without incurring responsibility to the Trustee or the
Holders and without impairing or releasing the subordination provided in this Article Thirteen or
the obligations hereunder of the Holders to the holders of the Senior Indebtedness of the Company,
do any one or more of the following: (i) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebtedness of the Company, or otherwise amend
or supplement in any manner Senior Indebtedness of the Company, or any instrument evidencing the
same or any agreement under which Senior Indebtedness of the Company is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness of the Company; (iii) release any Person liable in any manner for the payment
or collection of Senior Indebtedness of the Company; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
63
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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SELECTIVE INSURANCE GROUP, INC.
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By:
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Name:
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Dale A. Thatcher
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Title:
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Executive Vice President
Treasurer and Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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Exhibit 4.3
SELECTIVE INSURANCE GROUP, INC.
AND
U.S. BANK
NATIONAL ASSOCIATION
Trustee
Junior Subordinated Debt Indenture
Dated as of September , 2006
SELECTIVE INSURANCE GROUP, INC.
Indenture Dated as of September , 2006
CROSS REFERENCE SHEET*
Showing the Location in the Indenture of the Provisions Inserted Pursuant to Sections 310 to
318(a) inclusive of the Trust Indenture Act of 1939.
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Provisions of Trust Indenture Act of 1939
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Indenture Provision
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§ 310(a)(1), (2)
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§ 8.09
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(3)
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Not Applicable
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(4)
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Not Applicable
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(b)
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§ 8.08; § 8.10
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(c)
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Not Applicable
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§ 311(a)
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§ 8.13(a)
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(b)
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§ 8.13(b)
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(b)(2)
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§ 9.03 (a)(ii); § 9.03(b)
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(c)
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Not Applicable
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§ 312(a)
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§ 9.01; § 9.02(a)
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(b)
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§ 9.02(b)
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(c)
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§ 9.02(c)
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§ 313(a)
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§ 9.03(a)
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(b)(1)
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Not Applicable
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(2)
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§ 9.03(b)
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(c)
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§ 9.03(a); § 9.03(b)
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(d)
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§ 9.03(c)
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§ 314(a)
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§ 9.04
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(b)
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Not Applicable
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(c)
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§ 1.02
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(d)
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Not Applicable
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(e)
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§ 1.02
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(f)
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Not Applicable
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§ 315(a)(1)
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§ 8.01(a)(i)
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(2)
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§ 8.01(a)(ii)
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(b)
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§ 8.02
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(c)
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§ 8.01(b)
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(d)(1)
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§ 8.01(a)
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(2)
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§ 8.01(c)(ii)
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(3)
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§ 8.01(c)(iii)
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(e)
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§ 7.14
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§ 316(a)
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§ 7.12; § 7.13
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(b)
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§ 7.08
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(c)
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§ 1.04
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§ 317(a)(1), (2)
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§ 7.03; § 7.04
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(b)
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§ 12.03
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§ 318(a)
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§ 1.08
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*
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This Cross Reference Sheet is not part of the Indenture.
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i
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 1.01 Definitions
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1
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Section 1.02 Compliance Certificates and Opinions
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8
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Section 1.03 Form of Documents Delivered to Trustee
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9
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Section 1.04 Act of Holders
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9
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Section 1.05 Notices, etc., to Trustee and Company
|
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10
|
|
Section 1.06 Notice to Holders; Waiver
|
|
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10
|
|
Section 1.07 Immunity of Incorporator, Stockholders, Officers and Directors
|
|
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11
|
|
Section 1.08 Conflict with Trust Indenture Act
|
|
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11
|
|
Section 1.09 Effect of Headings and Table of Contents
|
|
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11
|
|
Section 1.10 Successors and Assigns
|
|
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11
|
|
Section 1.11 Separability Clause
|
|
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11
|
|
Section 1.12 Benefits of Indenture
|
|
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11
|
|
Section 1.13 Governing Law
|
|
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12
|
|
Section 1.14 Cross References
|
|
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12
|
|
Section 1.15 Counterparts
|
|
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12
|
|
Section 1.16 Legal Holidays
|
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12
|
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Section 1.17 Securities in Foreign Currencies
|
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12
|
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|
|
ARTICLE II
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SECURITY FORMS
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Section 2.01 Forms Generally
|
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13
|
|
Section 2.02 Form of Certificate of Authentication
|
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13
|
|
Section 2.03 Securities in Global Form
|
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13
|
|
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|
|
|
ARTICLE III
|
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|
THE SECURITIES
|
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Section 3.01 Amount Unlimited; Issuable in Series
|
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14
|
|
Section 3.02 Denominations
|
|
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17
|
|
Section 3.03 Authentication and Dating
|
|
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17
|
|
Section 3.04 Execution of Securities
|
|
|
18
|
|
Section 3.05 Exchange and Registration of Transfer of Securities
|
|
|
18
|
|
Section 3.06 Mutilated, Destroyed, Lost or Stolen Securities
|
|
|
21
|
|
Section 3.07 Temporary Securities
|
|
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21
|
|
Section 3.08 Payment of Interest; Interest Rights Preserved
|
|
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22
|
|
Section 3.09 Persons Deemed Owners
|
|
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23
|
|
ii
|
|
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Page
|
Section 3.10 Cancellation
|
|
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23
|
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Section 3.11 Computation of Interest
|
|
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24
|
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|
|
|
ARTICLE IV
|
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REDEMPTION OF SECURITIES
|
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|
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|
|
Section 4.01 Applicability of Article
|
|
|
24
|
|
Section 4.02 Election to Redeem; Notice to Trustee
|
|
|
24
|
|
Section 4.03 Selection by Trustee of Securities to Be Redeemed
|
|
|
24
|
|
Section 4.04 Notice of Redemption
|
|
|
25
|
|
Section 4.05 Deposit of Redemption Price
|
|
|
25
|
|
Section 4.06 Securities Payable on Redemption Date
|
|
|
26
|
|
Section 4.07 Securities Redeemed in Part
|
|
|
26
|
|
|
|
|
|
|
ARTICLE V
|
|
|
|
|
|
|
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
|
|
|
Section 5.01 Applicability of Article
|
|
|
26
|
|
Section 5.02 Satisfaction of Mandatory Sinking Fund Payments with Securities
|
|
|
27
|
|
Section 5.03 Redemption of Securities for Sinking Fund
|
|
|
27
|
|
|
|
|
|
|
ARTICLE VI
|
|
|
|
|
|
|
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
|
|
|
Section 6.01 Satisfaction and Discharge of Indenture
|
|
|
28
|
|
Section 6.02 Satisfaction, Discharge and Defeasance of Securities of any Series
|
|
|
30
|
|
Section 6.03 Application of Trust Money
|
|
|
31
|
|
Section 6.04 Paying Agent to Repay Moneys Held
|
|
|
31
|
|
Section 6.05 Return of Unclaimed Moneys
|
|
|
31
|
|
|
|
|
|
|
ARTICLE VII
|
|
|
|
|
|
|
|
|
|
REMEDIES
|
|
|
|
|
|
|
|
|
|
Section 7.01 Events of Default
|
|
|
32
|
|
Section 7.02 Acceleration of Maturity; Rescission and Annulment
|
|
|
33
|
|
Section 7.03 Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
34
|
|
Section 7.04 Trustee May File Proofs of Claim
|
|
|
35
|
|
Section 7.05 Trustee May Enforce Claims without Possession of Securities
|
|
|
36
|
|
Section 7.06 Application of Money Collected
|
|
|
36
|
|
Section 7.07 Limitation on Suits
|
|
|
37
|
|
Section 7.08 Unconditional Right of Holders to Receive Principal, Premium and Interest
|
|
|
37
|
|
Section 7.09 Restoration of Rights and Remedies
|
|
|
37
|
|
Section 7.10 Rights and Remedies Cumulative
|
|
|
38
|
|
iii
|
|
|
|
|
|
|
Page
|
Section 7.11 Delay or Omission Not Waiver
|
|
|
38
|
|
Section 7.12 Control by Holders
|
|
|
38
|
|
Section 7.13 Waiver of Past Defaults
|
|
|
38
|
|
Section 7.14 Undertaking for Costs
|
|
|
39
|
|
Section 7.15 Waiver of Stay or Extension Laws
|
|
|
39
|
|
|
|
|
|
|
ARTICLE VIII
|
|
|
|
|
|
|
|
|
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
Section 8.01 Certain Duties and Responsibilities
|
|
|
39
|
|
Section 8.02 Notice of Defaults
|
|
|
41
|
|
Section 8.03 Certain Rights of Trustee
|
|
|
41
|
|
Section 8.04 Not Responsible for Recitals or Issuance of Securities
|
|
|
42
|
|
Section 8.05 May Hold Securities
|
|
|
42
|
|
Section 8.06 Money Held in Trust
|
|
|
42
|
|
Section 8.07 Compensation and Reimbursement
|
|
|
43
|
|
Section 8.08 Disqualification; Conflicting Interests
|
|
|
43
|
|
Section 8.09 Corporate Trustee Required; Different Trustees for Different Series; Eligibility
|
|
|
43
|
|
Section 8.10 Resignation and Removal; Appointment of Successor
|
|
|
44
|
|
Section 8.11 Acceptance of Appointment by Successor
|
|
|
46
|
|
Section 8.12 Merger, Conversion, Consolidation or Succession to Business
|
|
|
46
|
|
Section 8.13 Preferential Collection of Claims against Company
|
|
|
47
|
|
Section 8.14 Authenticating Agent
|
|
|
47
|
|
|
|
|
|
|
ARTICLE IX
|
|
|
|
|
|
|
|
|
|
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
|
|
Section 9.01 Company to Furnish Trustee Names and Addresses of Holders
|
|
|
48
|
|
Section 9.02 Preservation of Information; Communications to Holders
|
|
|
49
|
|
Section 9.03 Reports by Trustee
|
|
|
50
|
|
Section 9.04 Reports by Company
|
|
|
50
|
|
|
|
|
|
|
ARTICLE X
|
|
|
|
|
|
|
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
|
|
|
|
|
|
|
|
|
|
Section 10.01 Company May Consolidate, etc., Only on Certain Terms
|
|
|
51
|
|
Section 10.02 Successor Person Substituted
|
|
|
52
|
|
|
|
|
|
|
ARTICLE XI
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
|
Section 11.01 Supplemental Indentures without Consent of Holders
|
|
|
52
|
|
Section 11.02 Supplemental Indentures with Consent of Holders
|
|
|
54
|
|
iv
|
|
|
|
|
|
|
Page
|
Section 11.03 Execution of Supplemental Indentures
|
|
|
55
|
|
Section 11.04 Notice of Supplemental Indenture
|
|
|
55
|
|
Section 11.05 Effect of Supplemental Indentures
|
|
|
55
|
|
Section 11.06 Conformity with Trust Indenture Act
|
|
|
55
|
|
Section 11.07 Reference in Securities to Supplemental Indentures
|
|
|
55
|
|
|
|
|
|
|
ARTICLE XII
|
|
|
|
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
|
|
|
Section 12.01 Payment of Principal, Premium and Interest
|
|
|
56
|
|
Section 12.02 Maintenance of Office or Agency
|
|
|
56
|
|
Section 12.03 Money for Securities Payments to Be Held in Trust
|
|
|
57
|
|
Section 12.04 Statement as to Compliance
|
|
|
57
|
|
Section 12.05 Corporate Existence
|
|
|
58
|
|
Section 12.06 Permit No Vacancy in Office of Trustee
|
|
|
58
|
|
Section 12.07 Waiver
|
|
|
58
|
|
|
|
|
|
|
ARTICLE XIII
|
|
|
|
|
|
|
|
|
|
SUBORDINATION OF THE SECURITIES
|
|
|
|
|
|
|
|
|
|
Section 13.01 Agreement to Subordinate
|
|
|
58
|
|
Section 13.02 Liquidation, Dissolution, Bankruptcy
|
|
|
58
|
|
Section 13.03 Default on Senior Indebtedness
|
|
|
59
|
|
Section 13.04 Acceleration of Payment of Securities
|
|
|
59
|
|
Section 13.05 When Distribution Must Be Paid Over
|
|
|
60
|
|
Section 13.06 Subrogation
|
|
|
60
|
|
Section 13.07 Relative Rights
|
|
|
60
|
|
Section 13.08 Subordination May Not Be Impaired by Company
|
|
|
61
|
|
Section 13.09 Rights of Trustee and Paying Agent
|
|
|
61
|
|
Section 13.10 Distribution or Notice to Representative
|
|
|
61
|
|
Section 13.11 Article Thirteen Not to Prevent Events of Default or Limit Right to Accelerate
|
|
|
61
|
|
Section 13.12 Trust Monies Not Subordinated
|
|
|
62
|
|
Section 13.13 Trustee Entitled to Rely
|
|
|
62
|
|
Section 13.14 Trustee to Effectuate Subordination
|
|
|
62
|
|
Section 13.15 Trustee Not Fiduciary for Holders of Senior Indebtedness
|
|
|
62
|
|
Section 13.16 Reliance by Holders of Senior Indebtedness on Subordination Provisions
|
|
|
63
|
|
v
JUNIOR SUBORDINATED DEBT INDENTURE, dated as of September , 2006, between SELECTIVE
INSURANCE GROUP, INC., a New Jersey corporation, having its principal office at 40 Wantage Avenue,
Branchville, New Jersey 07890 (the
Company
), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, having its corporate trust office at U.S. Bank, 10 W. Market Street, Suite
1150, Indianapolis, IN 46204, as trustee hereunder (the
Trustee
).
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate purposes and to issue debentures,
notes or other evidences of unsecured indebtedness therefor; and for its corporate purposes, the
Company has determined to make and issue its debentures, notes or other evidences of unsecured
indebtedness to be issued in one or more series (the
Securities
), as hereinafter provided, up to
such principal amount or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual covenants herein contained and of the
purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar to
the Company duly paid by the Trustee at or before the ensealing and delivery of these presents, and
for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to
declare the terms and conditions upon which the Securities are to be issued, IT IS HEREBY
COVENANTED, DECLARED AND AGREED, by and between the parties hereto, that all the Securities are to
be executed, authenticated and delivered subject to the further covenants and conditions
hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit of those who shall
hold the Securities, or any of them, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01
Definitions
.
For all purposes of this Indenture, of all indentures supplemental hereto
and all Securities issued hereunder except as otherwise expressly provided or unless the context
otherwise requires: (a) the terms defined in this Article shall have the meanings assigned to them
in this Article, and include the plural as well as the singular; (b) all terms used in this
Indenture, in any indenture supplemental hereto or in any such Securities which are defined in the
Trust Indenture Act shall have the meanings assigned to them in said Act; (c) all accounting terms
not otherwise defined herein or in such Securities shall have the meanings assigned to them in
accordance with generally accepted accounting principles.
Certain terms used in Article Eight hereof are defined in that Article.
Act
when used with respect to any Holder has the meaning specified in Section 1.04 hereof.
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.
Authenticating
Agent
: See Section 8.14 hereof.
Authorized Newspaper
means a newspaper of general circulation in the same city in which the
Place of Payment with respect to Securities of a series shall be located or in the Borough of
Manhattan, The City of New York, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive
weekly publications in an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week and in the same or
in different Authorized Newspapers.
Bearer Rules
means the provisions of the Internal Revenue Code, in effect from time to time,
governing the treatment of bearer obligations and any regulations thereunder including, to the
extent applicable to any series of Securities, proposed or temporary regulations.
Board of Directors
means either the board of directors of the Company or any committee of
that board duly authorized to act for it in respect hereof.
Board Resolution
means a copy of a resolution or resolutions 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.
Business Day
means (i) when used with respect to any payment, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in the Place of
Payment with respect to such payment are authorized or required by law or executive order to close
and (ii) when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan, The City of New York,
or in the city in which the Corporate Trust Office of the Trustee is located are authorized or
required by law or executive order to close.
Commission
means the United States Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or 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.
2
Company
means the corporation named as the
Company
in the first paragraph of this
instrument until a successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Company shall mean each such successor corporation.
Company Consent
,
Company Order
and
Company Request
mean, respectively, a written
consent, order or request signed in the name of the Company by its Chairman of the Board, any one
of its Vice Chairmen, the Chief Executive Officer, its President, any one of its Senior Executive
Vice Presidents, any one of its Executive Vice Presidents, any one of its Senior Vice Presidents,
any one of its Vice Presidents, its Treasurer, any one of its Assistant Treasurers, its Secretary
or any one of its Assistant Secretaries, and delivered to the Trustee.
Corporate Trust Office
means the principal office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office of U.S. Bank
National Association, at the date of the execution of this Indenture is located at U.S. Bank, 10 W.
Market Street, Suite 1150, Indianapolis, IN 46204, Attention: Ann Forey.
corporation
means a corporation, association, company or business trust.
Defaulted Interest
: See Section 3.08 hereof.
Depositary
when used with respect to the Securities of any series issuable or issued, in
whole or in part, in the form of a Global Security, means the Person designated as Depositary by
the Company pursuant to Section 3.01 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 Securities of any such series shall mean the
Depositary with respect to the Securities of that series.
Dollars
and the sign
$
mean 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.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Event of Default
: See Section 7.01 hereof.
Federal Bankruptcy Code
: See Section 7.01 hereof.
Foreign Currency
means any currency issued by the government of any country other than the
United States of America or any composite currency (including, without limitation, the European
Currency Unit).
Global Security
means a Security issued to evidence all or a part of any series of
Securities which is executed by the Company and authenticated and delivered to the Depositary or
pursuant to the Depositarys instructions, all in accordance with this Indenture and pursuant to a
Company Order, which shall be registered in the name of the Depositary or its nominee.
3
Holder
means, unless otherwise established as contemplated by Section 3.01 with respect to
the Securities of any series, a Person in whose name a Security of any series is registered in the
Securities Register for the Securities of such series.
Indenture
means this instrument as originally executed, or as it may be amended or
supplemented from time to time as herein provided, and shall include the form and terms of the
Securities of each series established as contemplated by Sections 2.01 and 3.01.
interest
when used with respect to any non-interest bearing Security means interest payable
after Maturity thereof.
Interest Payment Date
when used with respect to the Securities of any series means the
Stated Maturity of an installment of interest on the Securities of such series.
Issue Date
means the first date on which Securities are issued pursuant to this Indenture.
Maturity
when used with respect to any Security means the date on which the principal of
such Security becomes due and payable whether at the Stated Maturity or by declaration of
acceleration, call for redemption, pursuant to a sinking fund, notice of option to elect repayment
or otherwise.
Officers Certificate
means a certificate of the Company signed by its Chairman of the
Board, any one of its Vice Chairmen, the Chief Executive Officer, its President, any one of its
Senior Executive Vice Presidents, any one of its Executive Vice Presidents, any one of its Senior
Vice Presidents, any one of its Vice Presidents, its Treasurer, any one of its Assistant
Treasurers, its Secretary or any one of its Assistant Secretaries, and delivered to the Trustee.
Wherever this Indenture requires that an Officers Certificate be signed also by an accountant or
other expert, such accountant or other expert (except as otherwise expressly provided in this
Indenture) may be in the employ of the Company and shall be acceptable to the Trustee.
Opinion of Counsel
means a written opinion of the counsel, who may be an employee of or of
counsel to the Company, or other counsel reasonably satisfactory to the Trustee.
Original Issue Discount Security
means any Security which (i) is issued at a price lower
than the amount payable upon the Stated Maturity thereof and (ii) provides for an amount less than
the principal amount thereof to be due and payable upon redemption or a declaration of acceleration
of the Stated Maturity thereof pursuant to Section 7.02 hereof.
Outstanding
when used with respect to Securities means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except
:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities or portions thereof for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
4
Agent (other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of such
Securities;
provided
,
however
, that, if such Securities or portions thereof 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
(c) Securities paid or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory to the
Trustee is presented that any such Securities are held by a holder in due course;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of
Securities Outstanding have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or 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 any
such request, demand, authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded (Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor), and (ii) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon a declaration of acceleration pursuant
to Section 7.02 hereof.
Overdue Rate
when used with respect to the Securities of any series means the rate
designated as such, established as contemplated by Section 3.01 for the Securities of such series.
Paying Agent
means any Person authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
Person
means any individual, corporation, partnership, limited liability company, joint
venture, joint stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
Permitted Junior Securities
shall mean unsecured debt or equity securities of the Company or
any successor corporation issued pursuant to a plan of reorganization or readjustment of the
Company, as applicable, that are subordinated in right of payment to all then outstanding Senior
Indebtedness of the Company, as applicable, at least to the same extent that the Securities are
subordinated to the payment of all Senior Indebtedness of the Company.
Place of Payment
when used with respect to the Securities of any series means the place or
places where the principal of (and premium, if any) and interest, if any, on the Securities of such
series are specified as payable, established as contemplated by Section 3.01 or, if not so
established, specified in Section 12.02.
5
Predecessor Securities
of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security; and for the
purposes of this definition, any Security authenticated and delivered under Section 3.06 hereof in
lieu of a mutilated, lost, destroyed or stolen Security shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen Security.
record date
: See Section 3.08 hereof.
Redemption Date
when used with respect to any Security or portion thereof to be redeemed
means the date fixed for such redemption pursuant hereto.
Redemption Price
when used with respect to any Security or portion thereof to be redeemed on
any Redemption Date means the price at which it is to be so redeemed, established as contemplated
by Section 3.01 exclusive of interest accrued and unpaid to such Redemption Date.
Representative
means the trustee, agent or representative (if any) for an issue of Senior
Indebtedness, as applicable;
provided
that if, and for so long as, such Senior Indebtedness lacks
such a Representative, then the Representative for such Senior Indebtedness shall at all times
constitute the holder or holders of a majority in outstanding principal amount of obligations under
such Senior Indebtedness.
Responsible Officer
when used with respect to the Trustee means any officer of the Trustee
authorized by the Trustee to administer its corporate trust matters.
Securities
: See RECITALS OF THE COMPANY herein.
Securities Register
and
Securities Registrar
: See Section 3.05 hereof.
Senior Indebtedness
with respect to the Company means the principal, premium (if any) and
interest (including interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not such claim for post-petition interest is
allowed in such proceeding) on and of all indebtedness and obligations (other than the Securities,
but including any debentures, notes or other evidence of indebtedness issued under the Senior
Indenture or Senior Subordinated Indenture) of, or guaranteed or assumed by, the Company that (i)
are for borrowed money, (ii) are evidenced by bonds, debentures, notes or other similar instruments,
(iii) represent obligations to policyholders of insurance or investment contracts, (iv) represent a
reimbursement obligation with respect to a letter of credit, bankers acceptance or similar
facility, (v) represent our lease obligations that we capitalize
in accordance with generally accepted accounting principles, or (vi) represent the deferred purchase price of property or services, in each case,
whether outstanding on the Issue Date or thereafter created, incurred, assumed or guaranteed, and
all amendments, renewals, extensions, modifications and refundings of such indebtedness and
obligations, unless in any such case the instrument by which such indebtedness or obligations are
created, incurred, assumed or guaranteed by the Company, or are otherwise evidenced, provides that
they are subordinated, or are not superior, in right of payment to the Securities;
provided
,
however
, that Senior Indebtedness shall not include, as applicable:
(1) any obligation of the Company to any Subsidiary of the Company,
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(2) any liability for Federal, state, local or other taxes owed or owing by the Company
or any Subsidiary of the Company,
(3) any accounts payable or other liability to trade creditors (including guarantees
thereof or instruments evidencing such liabilities),
(4) any obligations with respect to any capital stock of the Company, or
(5) any indebtedness which by its terms is expressly made equal in rank and payment
with or subordinated to the Securities.
If any Senior Indebtedness is disallowed, avoided or subordinated pursuant to the provisions
of Section 548 of Title 11 of the United States Code or any applicable state fraudulent conveyance
law, such Senior Indebtedness nevertheless will constitute Senior Indebtedness.
Senior Indenture
means an Indenture, dated as of September , 2006, between the Company
and U.S. Bank National Association, as trustee, as the same may be
amended or supplemented from time to time.
Senior Subordinated Indenture
means a Subordinated Indenture, dated as of September ,
2006, between the Company and U.S. Bank National Association, as trustee, as the same may be
amended or supplemented from time to time.
Stated Maturity
when used with respect to any Security or any installment of interest
thereon means the date specified in such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
Subsidiary
of any Person means (i) any corporation of which such Person at the time owns or
controls, directly or through an intervening medium, more than fifty per cent (50%) of each class
of outstanding Voting Stock, (ii) any limited liability company, general partnership, joint
venture, joint stock company or similar entity, of which such Person at the time owns or controls,
directly or through an intervening medium, more than fifty per cent (50%) of its outstanding
partnership, membership or similar voting interests, as the case may be and (iii) any limited
partnership of which such Person, directly or through an intervening medium, is a general partner,
and unless otherwise specified shall mean a Subsidiary of the Company.
Trustee
means the Person named as the
Trustee
in the first paragraph of this instrument
and, subject to the provisions of Article Eight hereof, shall also include its successors and
assigns as Trustee hereunder. If there shall be at any one time more than one Trustee hereunder,
Trustee
shall mean each such Trustee and shall apply to each such Trustee only with respect to
the Securities of those series with respect to which it is serving as Trustee.
Trust Indenture Act
and
TIA
means the Trust Indenture Act of 1939, as amended and as in
force at the date as of which this instrument was executed, except as provided in Section 11.06
hereof.
U.S. Government Obligations
means securities which are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (ii)
7
obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and which shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such obligation set forth in (i)
or (ii) above or a specific payment of interest on or principal of any such obligation held by such
custodian for the account of the holder of a depository receipt;
provided
that (except as required
by law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in respect of the
obligation evidenced by such depository receipt or the specific payment of interest on or principal
of such obligation.
Vice President
when used with respect to the Company means any vice president, whether or
not designated by a number or a word or words added before or after the title
vice president
.
Voting Stock
means stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of any contingency).
Section 1.02
Compliance Certificates and Opinions
.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent (including any covenant compliance with which constitutes a
condition 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:
(a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 1.03
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Company, unless such Officer or counsel,
as the case may be, knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which his or her
certificate, statement or opinion is based are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated to form one instrument.
Section 1.04
Act of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the
Act
of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and
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(subject to Section 8.01 hereof) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such instrument or writing,
or the authority of the Person executing the same, may be proved in any manner that the
Trustee deems sufficient and in accordance with such reasonable requirements as the Trustee
may determine.
(c) The ownership of Securities of any series shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company or any agent of the
Trustee or the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent or take any other action under this Indenture, which
record date shall not be more than 60 days nor less than 10 days prior to the solicitation
with respect thereto, and only such Holders shall be so entitled.
Section 1.05
Notices, etc., to Trustee and Company
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (except as provided in Subsection (d) of Section 7.01 hereof) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it 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 1.06
Notice to Holders; Waiver
.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Securities Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice
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mailed in the manner prescribed by this Indenture shall be deemed to have been given whether
or not such Holder receives said notice. 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.
Section 1.07
Immunity of Incorporator, Stockholders, Officers and Directors
.
No recourse shall be had for the payment of the principal of (and premium, if any) or the
interest, if any, on any Security of any series, or for any claim based thereon, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer
or director, as such, past, present or future of the Company or of any successor corporation,
either directly or indirectly through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this Indenture and all the Securities are
solely corporate obligations, and that no personal liability whatever shall attach to, or is
incurred by, any incorporator, stockholder, officer or director, past, present or future, of the
Company or of any successor corporation, either directly or indirectly through the Company or any
successor corporation, because of the incurring of the indebtedness hereby authorized or under or
by reason of any of the obligations, covenants or agreements contained in this Indenture or in any
of the Securities, or to be implied herefrom or therefrom; and that all such personal liability is
hereby expressly released and waived as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Securities.
Section 1.08
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with any provision deemed to be
included in this Indenture by any of the provisions of the Trust Indenture Act, such
deemed-included provision shall control.
Section 1.09
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 1.10
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.11
Separability Clause
.
In case any provision in this Indenture or in any Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions hereof or of
any Securities shall not in any way be affected or impaired thereby.
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Section 1.12
Benefits of Indenture
.
Nothing in this Indenture or in the Securities, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, and the Holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13
Governing Law
.
This Indenture and each Security shall be deemed to be a contract made under the laws of the
State of New York and this Indenture and each Security for all purposes shall be governed by and
construed in accordance with the laws of the State of New York.
Section 1.14
Cross References
.
All references herein to
Articles
and other subdivisions are to the corresponding Articles
or other subdivisions of this Indenture; and the words
herein
hereof
hereby
hereunder
hereinbefore
and
hereinafter
and other words of similar purport refer to this Indenture
generally and not to any particular Article, Section or other subdivision hereof.
Section 1.15
Counterparts
.
This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.
Section 1.16
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security
of any series is not a Business Day at the relevant Place of Payment with respect to Securities of
such series, then notwithstanding any other provision of this Indenture or the Securities, payment
of interest, if any, or principal and premium, if any, with respect to such Security need not be
made at such Place of Payment on such date but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on such Interest Payment Date or
Redemption Date or at the Stated Maturity, and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be.
Section 1.17
Securities in Foreign Currencies
.
Whenever this Indenture provides for any action by, or any distribution to, Holders of
Securities denominated in Dollars and in any Foreign Currency, in the absence of any provision to
the contrary established as contemplated by Section 3.01 for the Securities of any particular
series, any amount in respect of any Security denominated in a Foreign Currency shall be treated
for any such action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of such date as the Company may specify in a
Company Order.
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ARTICLE II
SECURITY FORMS
Section 2.01
Forms Generally
.
The Securities of each series shall be in substantially the forms as shall be established by
or pursuant to Board Resolution or one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, 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 any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities of each series shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.02
Form of Certificate of Authentication
.
The Certificate of Authentication on all Securities shall be in substantially the following
form:
This is one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
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U.S. Bank National Association,
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as Trustee
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By
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[Authorized Officer]
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or
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By
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[As Authenticating Agent]
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[Authorized Officer]
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Section 2.03
Securities in Global Form
.
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If any Security of a series is issuable as a Global Security (in whole or in part), such
Global Security may provide that it shall represent the aggregate principal amount of Outstanding
Securities of such series from time to time represented thereby in the records of the Trustee or
endorsed thereon and may also provide that the aggregate principal amount of Outstanding Securities
of such series represented thereby in the records of the Trustee or endorsed thereon may from time
to time be reduced or increased. Any change in the records of the Trustee or any endorsement of a
Global Security to reflect the aggregate principal amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made by the Trustee in accordance
with provisions established as contemplated by Section 3.01.
ARTICLE III
THE SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or one or more indentures supplemental hereto, prior to the issuance of any
Securities of any series:
(a) the title of the Securities of such series (which shall distinguish the Securities
of such series from all other series of Securities);
(b) any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered pursuant to Section 3.05, 3.06, 3.07, 4.07, or 11.07 hereof);
(c) the date or dates, or the method by which such date or dates will be determined or
extended, on which the principal of and premium, if any, on the Securities of such series is
payable;
(d) the Persons to whom interest on Securities of such series shall be payable, if
other than the Persons in whose names such Securities are registered at the close of
business on the record date for such interest;
(e) the rate or rates, or the method to be used in determining the rate or rates, at
which the Securities of such series shall bear interest, if any, the date or dates from
which such interest shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest shall be payable and, if other
than as set forth in Section 3.08 hereof, the record date for the determination of Holders
to whom such interest is payable, and the basis upon which Interest shall be calculated if
other than as set forth in Section 3.11;
14
(f) the circumstances, if any, in which principal, premium, if any, or interest on such
debt security may be deferred;
(g) the place or places at which (i) the principal of and premium, if any, and
interest, if any, on Securities of such series shall be payable if other than as set forth
in the third sentence of Section 12.02, (ii) registration of transfer of Securities of such
series may be effected, (iii) exchanges of Securities of such series may be effected and
(iv) notice and demands to or upon the Company in respect of the Securities of such series
and this Indenture may be served; and if such is the case, that the principal of such
Securities shall be payable without the presentment or surrender thereof;
(h) any optional redemption or repayment provisions;
(i) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of such series may be redeemed, in whole or in part, at the
option of the Company, at the option of a Holder or otherwise;
(j) the obligation, if any, of the Company to redeem, purchase or repay Securities of
such series pursuant to any sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which, the period or periods within which and the
terms and conditions upon which Securities of such series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(k) if other than Dollars, the Foreign Currency or Foreign Currencies in which payment
of the principal of and premium, if any, and interest, if any, on the Securities of such
series shall be payable or in which such Securities will be denominated;
(l) if the principal of and premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder thereof, in a coin
or currency (including a composite currency) other than that in which such Securities are
stated to be payable, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(m) if denominated or payable in any coin or currency, including composite currencies,
other than Dollars, or if the terms of the Securities provide that the principal amount
thereof payable at maturity may be more or less than the principal face amount thereof at
original issuance, the method by which the Securities of such series shall be valued, which
may be any reasonable method, against the Securities of all other series for voting, the
giving of any request, demand, authorization, direction, notice, consent or waiver,
distribution and all other purposes hereof and any provisions required for purposes of
applying Sections 6.01 and 6.02 hereof;
(n) if the amount of payments of principal of and premium, if any, or interest, if any,
on the Securities of such series may be determined with reference to an index, the formula
or other method (which may be based on one or more currencies (including a composite
currency), commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
15
(o) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of such series shall be issuable;
(p) if other than the principal amount thereof, the portion of the principal amount of
Securities of such series which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 7.02 hereof or the method by which such portion shall
be determined;
(q) any addition to, or modification or deletion of, any Event of Default or any
covenant of the Company specified herein with respect to the Securities of such series;
(r) if other than the rate of interest stated in the title of the Securities of such
series, the applicable Overdue Rate;
(s) if the Securities of such series do not bear interest, the applicable dates for
purposes of Section 9.01 hereof,
(t) the inapplicability to the Securities of such series of Section 6.02 relating to
satisfaction, discharge and defeasance of Securities or, if applicable, any modification to
Section 6.02 with respect to the Securities of such series;
(u) if other than U.S. Bank National Association is to act as Trustee for the
Securities of such series, the name and Corporate Trust Office of such Trustee;
(v) whether the Securities of such series shall be issued in whole or in part in the
form of a Global Security or Securities and, in such case the terms and conditions, if any,
upon which such Global Security or Securities may be exchanged in whole or in part for other
definitive Securities, the Depositary for such Global Security or Securities (which shall be
a clearing agency registered under the Exchange Act, or any other applicable statute or
regulation, to the extent required thereunder), whether such Global Security shall be
permanent or temporary, any limitations on the rights of the Holder or Holders to transfer
or exchange the same or to obtain the registration of transfer thereof in addition to or in
lieu of those set forth in Section 3.05, any limitations on the rights of the Holder or
Holders thereof to obtain certificates in definitive form, and, the provisions for
determining the aggregate principal amount of Outstanding Securities from time to time
represented thereby and any and all matters incidental to such Global Security or
Securities;
(w) if the Securities of such series may be converted into or exchanged for other
securities of the Company or any other Persons, the terms and conditions pursuant to which
the Securities of such series may be converted or exchanged;
(x) if the principal of or premium, if any, or interest, if any, on the Securities of
such series are to be payable, at the election of the Company or a Holder thereof, in
securities or other property, the type and amount of such securities or other property, or
the method by which such amount shall be determined, and the periods within which, and the
terms and conditions upon which, any such election may be made;
16
(y) if the Securities of any such series are to be issued as certificated debt
securities in bearer form, to be issued outside the United States to non-U.S. persons, and,
any and all matters incidental thereto;
(z) if the Securities of such series are to be issued upon the exercise of a warrant or
right, the time, manner and place for such Securities to be authenticated and delivered; and
(aa) any other terms of the Securities of such series (which terms shall conform to any
applicable requirements of the TIA, and shall not materially adversely affect the rights of
the Holders of Securities of such series then outstanding).
All Securities of any one series shall be substantially identical except as to principal
amount and except as may otherwise be established as contemplated by this Section 3.01.
Section 3.02
Denominations
.
Unless otherwise established as contemplated by Section 3.01, the Securities of each series
shall be issuable only in registered form without coupons in such denominations as shall be
established as contemplated by Section 3.01 or in the absence thereof, in denominations of $1,000
and any integral multiple thereof.
Section 3.03
Authentication and Dating
.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication. Except as otherwise provided in this Article, the Trustee shall thereupon
authenticate and deliver, or cause to be authenticated and delivered, said Securities pursuant to a
Company Order, which shall specify the principal amount, registered holder and delivery
instructions for each such Security. In authenticating (or causing authentication of) such
Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, prior to the authentication of such
Securities, and (subject to Sections 8.01 and 8.03 hereof) shall be fully protected in relying
upon:
(a) a Board Resolution relating thereto and, if applicable, an appropriate record of
any action taken pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any, relating thereto;
(c) an Officers Certificate setting forth the form and terms of the Securities of such
series as established as contemplated by Sections 2.01 and 3.01 hereof (to the extent not
set forth in the documents delivered pursuant to Subsection 3.03(a) or 3.03(b)) and stating
that all conditions precedent provided for in this Indenture relating to the issuance of
such Securities have been complied with, that no Event of Default with respect to the
Securities of any Series has occurred and is continuing and that the issuance of such
Securities is not and will not result in (i) an Event of Default or an event
17
or condition which, upon the giving of notice or the lapse of time or both, would
become an Event of Default or (ii) a default under the provisions of any other instrument or
agreement by which the Company is bound; and
(d) an Opinion of Counsel stating that the form and terms of such Securities have been
established as contemplated by Sections 2.01 and 3.01 in conformity with the provisions of
this Indenture.
The Trustee shall have the right to decline to authenticate and deliver, or cause to be
authenticated and delivered, any Securities under this Section 3.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith
shall determine that such action would expose the Trustee to personal liability to existing Holders
or would otherwise adversely affect its rights, duties, obligations or immunities hereunder.
Unless otherwise provided in the form of Securities of any particular series, each Security
shall be dated the date of its authentication.
Section 3.04
Execution of Securities
.
The Securities shall be signed in the name and on behalf of the Company by the manual or
facsimile signatures of its Chairman of the Board, Chief Executive Officer, its President, any one
of its Senior Executive Vice Presidents, any one of its Executive Vice Presidents, any one of its
Senior Vice Presidents or any one of its Vice Presidents, under its corporate seal (which may be
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise) and attested to by
its Secretary or any one of its Assistant Secretaries, whose signatures may be manual or facsimile.
Only such Securities as shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by or on behalf of the Trustee by manual signature, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by or on behalf of the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Securities so signed shall have been authenticated and delivered by or
on behalf of the Trustee, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such Securities had not
ceased to be such officer of the Company; and any Security may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Security, shall be the proper
officers of the Company, although at the date of the execution of this Indenture any such person
was not such an officer.
Section 3.05
Exchange and Registration of Transfer of Securities
.
Securities of any series (except for Global Securities, which may only be exchanged in limited
circumstances described below) may be exchanged for a like aggregate principal amount of Securities
of the same series of other authorized denominations. Unless
18
otherwise established as contemplated
by Section 3.01, Securities to be exchanged shall be surrendered at any of the offices or agencies
of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Company
shall execute and register, or cause to be registered, and the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, in exchange therefor the Security or
Securities which the Holder making such exchange shall be entitled to receive.
Unless otherwise established as contemplated by Section 3.01, the Company shall keep at the
office or agency in the same city in which the Corporate Trust Office of the Trustee is located, a
register for the Securities of each series issued hereunder (the register maintained at such office
or agency and at any other office or agency of the Company in a Place of Payment being herein
collectively referred to as the
Securities Register
) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities of
such series and registration of transfer of such Securities as provided in this Article. Such
Securities Register shall be in written form or in any other form capable of being converted into
written form within a reasonable time. The Trustee is hereby initially appointed Securities
Registrar for the purpose of registering Securities and registering transfers of Securities as
herein provided. Upon due presentment for registration of transfer of any Security of any series at
any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for
such purpose, the Company shall execute and register, or cause to be registered, and the Trustee
shall authenticate and deliver, or cause to be authenticated and delivered, in the name of the
transferee or transferees a new Security or Securities of the same series in authorized
denominations for an equal aggregate principal amount.
Every Security issued upon registration of transfer or exchange of Securities pursuant to this
Section 3.05 shall be the valid obligation of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Security or Securities surrendered upon
registration of such transfer or exchange.
All Securities presented for registration of transfer or for exchange, redemption or payment
shall (if so required by the Company, the Trustee or the Securities Registrar) be duly endorsed by,
or be accompanied by, a written instrument or instruments of transfer in form satisfactory to the
Company, the Trustee and the Securities Registrar duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.07, 4.07 or 11.07 hereof not involving any
transfer.
The Company shall not be required (a) to issue, register the transfer of or exchange any
Security of any series during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of such series and ending at
the close of business on the day of such mailing or (b) to register the transfer of or
exchange any Security selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not to be redeemed.
19
Each Global Security authenticated under this Indenture shall be registered in the name of the
Depositary designated for such Global Security or a nominee thereof and delivered to such
Depositary or a custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise
specified as contemplated by Section 3.01, no Global Security shall be registered for transfer or
exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07
or 11.07 in the name of a Person other than the Depositary for such Security or its nominee until
(i) the Depositary with respect to a Global Security notifies the Company in writing that it is
unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to
be a clearing agency registered under the Exchange Act or other applicable statute or regulation if
required thereunder, and the Company notifies the Trustee that it is unable to locate a qualified
successor Depositary, (ii) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable and exchangeable or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Securities of such Series. Upon the
occurrence in respect of any Global Security of any series of any one or more of the conditions
specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may
be specified as contemplated by Section 3.01 for such series, such Global Security may be
registered for transfer or exchange for Securities registered in the names of, or authenticated and
delivered to, such Persons as the Depositary with respect to such series shall instruct the Trustee
in writing. The Trustee, upon receipt of such instruction, will authenticate and deliver Securities
of such series of like tenor and terms 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.
Except as provided in the preceding paragraph, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global Security or any portion
thereof, whether pursuant to this Section 3.05, Section 3.06, 3.07, 4.07 or 11.07 or otherwise,
shall also be a Global Security. Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or to another Depositary or a nominee thereof or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or to another Depositary or a
nominee thereof.
Upon such terms established as contemplated by Section 3.01 with respect to the Securities of
any series, the Depositary for the Securities of such series may surrender a Global Security for
such series in exchange in whole or in part for Securities of such series of like tenor and terms
and in definitive form. Thereupon the Company shall execute, and the Trustee upon receipt of a
Company Order shall authenticate and deliver, without service charge, (i) to the Depositary or to
each Person specified by such Depositary a new Security or Securities of the same series, of like
tenor and terms in definitive form and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Persons beneficial interest in the
Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a
principal amount equal to the difference, if any, between
the principal amount of the surrendered Global Security and the aggregate principal amount of
Securities delivered pursuant to clause (i).
20
Upon the exchange of a Global Security for Securities in definitive form, such Global Security
shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security
pursuant to this Section shall either be in global form, established as contemplated by Sections
2.01 and 3.01, or shall be registered in such names and in such authorized denominations and
delivered to the Depositary or to such Persons at such addresses as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing.
Section 3.06
Mutilated, Destroyed, Lost or Stolen Securities
.
In case any temporary or definitive Security of any series shall become mutilated or be
destroyed, lost or stolen, and in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company in the case of a mutilated
Security shall, and in the case of a lost, stolen or destroyed Security may in its discretion,
execute, and upon a Company Request the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, a new Security of the same series bearing a number, letter or other
distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or
stolen, or if any such Security shall have become due and payable or shall be about to become due
and payable, instead of issuing a substituted Security, the Company may pay or authorize the
payment of the same without surrender thereof (except in the case of a mutilated Security). In
every case the applicant for a substituted Security shall furnish to the Company and to the Trustee
such security or indemnity as may be required by them to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the Company and to the
Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Upon the issuance of any substituted Security under this Section 3.06, 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 any
Authenticating Agent) connected therewith.
Every substituted Security of any series issued pursuant to the provisions of this Section
3.06 by virtue of the fact that any Security of such series is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions of this Section 3.06 are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude (to the extent
lawful) any and all other rights or remedies with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 3.07
Temporary Securities
.
Pending the preparation of definitive Securities of any series the Company may execute and the
Trustee shall authenticate and deliver, or cause to be authenticated and delivered,
21
temporary
Securities of such series (printed, lithographed, typewritten, mimeographed or otherwise produced).
Temporary Securities shall be issuable in any authorized denomination and substantially in the form
of the definitive Securities in lieu of which they are issued but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be determined by the
Company with the concurrence of the Trustee. Every such temporary Security shall be executed by the
Company and shall be authenticated by or on behalf of Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive Securities in lieu of
which they are issued. Without unreasonable delay the Company will execute and deliver to the
Trustee definitive Securities of such series and thereupon any or all temporary Securities of such
series may be surrendered in exchange therefor, at any of the offices or agencies of the Company
maintained as provided in Section 12.02 hereof for such purpose, and the Trustee shall authenticate
and deliver, or cause to be authenticated and delivered, in exchange for such temporary Securities
an equal aggregate principal amount of definitive Securities of such series. Such exchange shall be
made by the Company at its own expense and without any charge therefor except that in case of any
such exchange involving any registration of transfer the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto.
Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series authenticated and
delivered hereunder. Notwithstanding the foregoing provisions of this Section 3.07, Global
Securities may remain in temporary form and, unless otherwise established as contemplated by
Section 3.01, shall not be exchangeable for definitive Global Securities.
Section 3.08
Payment of Interest; Interest Rights Preserved
.
The Holder at the close of business on any record date with respect to any Interest Payment
Date shall be entitled to receive the interest, if any, payable on such Interest Payment Date
notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to the
record date and prior to such Interest Payment Date. Except as otherwise established as
contemplated by Section 3.01 for Securities of a particular series, the term record date as used
in this Section 3.08 with respect to any Interest Payment Date, shall mean the last day of the
calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth
day of the calendar month, and shall mean the fifteenth day of the calendar month preceding such
Interest Payment Date if such Interest Payment Date is the first day of the calendar month, whether
or not such day shall be a Business Day.
If and to the extent the Company shall default in the payment of the interest due on such
Interest Payment Date, such defaulted interest (herein called
Defaulted Interest
) shall forthwith
cease to be payable to the registered Holder on such record date by virtue of having
been such Holder; and such Defaulted Interest shall be paid by the Company, at its election in
each case, as provided in clause (a) or (b) below:
(a) The Company may make payment of any Defaulted Interest to the Holders entitled
thereto at the close of business on a subsequent record date established in the following
manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each applicable Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an
22
amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Holders
entitled to such Defaulted Interest as in this clause (a) provided. Thereupon the Trustee
shall fix a record date for the payment of such Defaulted Interest which shall not be 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 record date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the record date therefor to be mailed, first-class postage prepaid, to each
Holder entitled thereto at his address as it appears on the Securities Register, not less
than 10 days prior to such record date. Notice of the proposed payment of such Defaulted
Interest and the record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Holders of applicable Securities at the close of business on
such record date (notwithstanding the cancellation of such Securities upon any transfer or
exchange subsequent to such record date and prior to such payment) and shall no longer be
payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of such series 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 (b), such manner of payment shall be deemed
practicable by the Trustee. Subject to the foregoing provisions of this Section 3.08, each
Security delivered under this Indenture upon registration of transfer of or in exchange for
or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Security.
Section 3.09
Persons Deemed Owners
.
Prior to the due presentment for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of principal of and premium, if
any and (subject to Section 3.08 hereof) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such 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.
None of the Company, the Trustee, any Paying Agent or the Securities Registrar shall have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests and they shall be protected in acting
or refraining from acting on any such information provided by the Depositary.
23
Section 3.10
Cancellation
.
All Securities surrendered for the purpose of payment, redemption, exchange or registration of
transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying
Agent or any Securities Registrar, be surrendered to the Trustee and promptly cancelled by it, or,
if surrendered to the Trustee, shall be promptly cancelled by it, and no Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall destroy cancelled Securities and deliver a certificate of such destruction to the
Company unless, by a Company Order, the Company directs that such cancelled Securities be returned
to it. If the Company shall acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation.
Section 3.11
Computation of Interest
.
Except as otherwise established as contemplated by Section 3.01 hereof for Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE IV
REDEMPTION OF SECURITIES
Section 4.01
Applicability of Article
.
The provisions of this Article shall be applicable to all Securities which are redeemable
before their Stated Maturity except as otherwise established as contemplated by Section 3.01 hereof
for Securities of any series.
Section 4.02
Election to Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities of any series shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of a series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) deliver to
the Trustee an Officers Certificate setting forth such Redemption Date and the principal amount of
Securities of such series to be redeemed and stating that no default in payment of interest or
Event of Default has occurred and is continuing with respect to the Securities of such series.
Section 4.03
Selection by Trustee of Securities to Be Redeemed
.
If less than all the Securities of any series are to be redeemed, the particular Securities of
such series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate (which is in compliance with the
requirements of any national securities exchange on which such Securities are listed) and which may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of such series or any integral multiple thereof)
24
of the principal of Securities of a
denomination greater than the minimum authorized denomination for Securities of such series.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security 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 Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of such Security which has been or
is to be redeemed, whether or not such provisions so provide.
Section 4.04
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Securities Register. Neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, and accrued interest, if any,
(c) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts) of
the Securities of such series to be redeemed,
(d) that on the Redemption Date the Redemption Price, together with accrued interest,
if any, to the Redemption Date, will become due and payable upon each such Security, and
that interest thereon shall cease to accrue from and after said date,
(e) the place where such Securities are to be surrendered for payment of the Redemption
Price, and accrued interest, if any, and
(f) that the redemption is for a sinking fund, if that be the case.
Notice of redemption of the Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request made at least 35 days period to the redemption
date, by the Trustee in the name and at the expense of the Company upon Trustees receipt from the
Company of the form of such notice containing the information required under Section 4.04 above.
25
Section 4.05
Deposit of Redemption Price
.
On or before 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 12.03 hereof) an amount of money sufficient to pay the Redemption Price of, and
accrued interest, if any, on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 4.06
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the Securities or portions thereof so to
be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price thereof
together with accrued interest, if any, thereon to the Redemption Date, and from and after such
date (unless the Company shall default in the payment of the Redemption Price and such accrued
interest, if any) such Securities or portions thereof shall cease to bear interest. Upon surrender
of such Securities for redemption in accordance with said notice such Securities or specified
portions thereof shall be paid by the Company at the Redemption Price, together with any accrued
interest to the Redemption Date. Installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities registered as such on the
relevant record dates according to their terms and the provisions of Section 3.08 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof on such
Redemption Date, the principal and premium, if any, shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
Section 4.07
Securities Redeemed in Part
.
Security of any series which is to be redeemed only in part shall be surrendered at the Place
of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver, or cause to be authenticated and delivered, to the Holder
of such Security without service charge, a new Security or Securities of the same series of any
authorized denomination as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal amount of the Security so surrendered.
ARTICLE V
SINKING FUNDS
Section 5.01
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities except as otherwise established as contemplated by Section 3.01 for Securities of any
series.
The minimum amount of any sinking fund payment established as contemplated by Section 3.01 for
Securities of any series is herein referred to as a mandatory sinking fund
26
payment, and any
permitted payment in excess of such minimum amount established as contemplated by Section 3.01 for
Securities of any series is herein referred to as an optional sinking fund payment.
Section 5.02
Satisfaction of Mandatory Sinking Fund Payments with Securities
.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities
of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit
for the principal amount of Securities of that series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities;
provided
that
such Securities have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
Section 5.03
Redemption of Securities for Sinking Fund
.
Not less than 60 days prior to each sinking fund payment date for the Securities of any
series, the Company will deliver to the Trustee a certificate signed by the Treasurer or any
Assistant Treasurer of the Company specifying the amount of such next ensuing mandatory sinking
fund payment, the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting Securities of such
series pursuant to Section 5.02 (which Securities will accompany such certificate) and whether the
Company intends to make any permitted optional sinking fund payment in connection therewith. Such
certificate shall also state that no Event of Default has occurred and is continuing with respect
to Securities of such series. Such certificate shall be irrevocable and upon its delivery the
Company shall be obligated to make the cash payment or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. In the case of the failure of the Company to
deliver such certificate when due (or to deliver the Securities specified in this Section 5.03) the
sinking fund payment due on the next succeeding sinking fund payment date for Securities of that
series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 5.02 and without the right to make any optional sinking fund
payment, in connection therewith.
Any sinking fund payment or payments (mandatory or optional) with respect to the Securities of
any particular series made in cash plus any unused balance of any preceding sinking fund payments
with respect to Securities of such series made in cash which shall equal or exceed $100,000 or the
equivalent thereof in the Foreign Currency in which such series is denominated (or a lesser sum if
the Company shall so request) shall be applied by the Trustee on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption of such Securities
at the Redemption Price specified in such Securities for operation of the sinking fund together
with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so
applied or allocated by the Trustee to the
27
redemption of such Securities shall be added to the next
cash sinking fund payment received by the Trustee for Securities of such series and, together with
such payment, shall be applied in accordance with the provisions of this Section 5.03. Any and all
sinking fund moneys with respect to the Securities of any particular series held by the Trustee on
the last sinking fund payment date with respect to Securities of such series and not held for the
payment or redemption of particular Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal
of the Securities of such series at Maturity.
The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in the first paragraph of Section 4.03 hereof and the Company shall cause
notice of the redemption thereof to be given in the manner provided in Section 4.04 hereof. Such
notice having been duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 4.06 and 4.07 hereof.
On or before any sinking fund payment date, the Company shall deposit with the Trustee an
amount of money sufficient to pay any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 5.03.
The Trustee shall not redeem any Securities of any series with sinking fund moneys or mail any
notice of redemption of Securities of such series by operation of the sinking fund therefor during
the continuance of a default in payment of interest on Securities of such series or of any Event of
Default (other than an Event of Default occurring as a consequence of this paragraph) with respect
to Securities of such series, except that if the notice of redemption of any Securities of such
series shall theretofore have been mailed in accordance with the provisions hereof, the Trustee
shall redeem such Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article. Except as aforesaid, any
moneys in the sinking fund for Securities of such series at the time when any such default or Event
of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the payment of such
Securities;
provided
,
however
, that in case such Event of Default or default shall have been cured
or waived as, provided herein, such moneys shall thereafter be applied on the next sinking fund
payment date for such Securities on which such moneys may be applied pursuant to the provisions of
this Section 5.03.
ARTICLE VI
SATISFACTION AND DISCHARGE
Section 6.01
Satisfaction and Discharge of Indenture
.
This Indenture shall cease to be of further effect with respect to the Securities of any
series (except as to the rights of Holders of Outstanding Securities of such series to receive,
from the trust funds described in paragraph (a) of this Section 6.01, payment of the principal of,
premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of
such principal, premium, if any, or installment of interest, if any, the Companys obligations with
28
respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as
may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder), and the Trustee for the Securities of such
series, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such
series, when
(a) either
(i) all the Securities of such series theretofore authenticated and
delivered (other than (A) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06 hereof and (B) Securities of such series for whose payment
money has theretofore been deposited with the Trustee or the Paying
Agent for the Securities of such series 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 6.05 hereof) have been delivered to such
Trustee for cancellation; or
(ii) all Securities of such series not theretofore delivered to such
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to such Trustee for the giving of notice
of redemption by such Trustee in the name, and at the expense, of
the Company,
and the Company has deposited or caused to be deposited with such Trustee irrevocably as
trust funds in trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of all Outstanding Securities of such series, with reference to this
Section 6.01, (i) money in an amount in the currency in which the Securities of such series
are denominated or (ii) U.S. Government Obligations in the case of Securities denominated in
Dollars or obligations issued or guaranteed by the government which issued the currency in
which the Securities of such series are denominated in the case of Securities denominated in
Foreign Currencies, which through the payment of interest and principal in respect thereof
in accordance with their terms will provide, not later than the opening of business on the
due date of any payment referred to below, money in an amount in the currency in which the
Securities of such series are denominated, or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on all Outstanding Securities of such series not theretofore delivered to such
Trustee for cancellation, for principal (and
29
premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities of such series which have become due and
payable), or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company in connection with Outstanding Securities of such series, including all fees and
expenses of the Trustee for such series; and
(c) the Company has delivered to such 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 with respect to the
Securities of any series, the obligations of the Company with respect to Securities of any
other series and to the Trustee for the Securities of such series under Section 8.07 hereof
shall survive.
Section 6.02
Satisfaction, Discharge and Defeasance of Securities of any Series
.
Unless otherwise established, as contemplated by Section 3.01, with respect to Securities of
any series, the Company shall, notwithstanding Section 6.01, be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Securities of any such series from and after the
ninety-first day after the date of the deposit referred to in paragraph (a) below, the provisions
of this Indenture (except as to the rights of Holders of Outstanding Securities of such series to
receive, from the trust funds described in paragraph (a) below, payment of the principal of,
premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of
such principal, premium, if any, or installment of interest, if any, the Companys obligations with
respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as
may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties,
indemnities and immunities of the Trustee hereunder) shall no longer be in effect in respect of
Outstanding Securities of such series, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such indebtedness;
provided
that the following conditions shall have been satisfied:
(a) the Company is permitted pursuant to Article Thirteen to deposit or cause to be
deposited and has deposited or caused to be deposited with the Trustee irrevocably as trust
funds in trust, specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of all Outstanding Securities of such series, with reference to this Section
6.02, (i) money in an amount in the currency in which the Securities of such series are
denominated or (ii) U.S. Government Obligations in the case of Securities denominated in
Dollars or obligations issued or guaranteed by the government which issued the currency in
which the Securities are denominated in the case of Securities denominated in Foreign
Currencies, which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than the opening of business on the due
date of any payment referred to in this paragraph (a), money in an amount in the currency in
which the Securities of such series are denominated, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
30
independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge the entire indebtedness on all Outstanding Securities
of such series for principal, premium, if any, and interest, if any, to the Stated Maturity
as such principal, premium, if any, or interest, if any, becomes due and payable in
accordance with the term of this Indenture and the Securities of such series;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company in connection with the Outstanding Securities of such series, including all fees and
expenses of the Trustee for such series; and
(c) 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 on all Outstanding Securities of such
series have been complied with.
Section 6.03
Application of Trust Money
.
(a) Subject to the provisions of Section 6.05, all money, U.S. Government Obligations
and other government obligations deposited with the Trustee for the Securities of any series
pursuant to Section 6.01 or 6.02, and all money received by the Trustee in respect of U.S.
Government Obligations and such other government obligations deposited with the Trustee for
the Securities of any series pursuant to Section 6.01 or 6.02 shall be held in trust and
applied by it, in accordance with the provisions of the Securities of such series 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 of, premium, if any, and interest, if any, on the
Securities of such series; but such money need not be segregated from other funds except to
the extent required by law and the Trustee shall have no liability to pay interest thereon
or for the investment thereof. Money and securities so held in trust are not subject to
Article Thirteen.
(b) The Trustee shall deliver or pay to the Company from time to time upon Company
request any U.S. Government Obligations, other government obligations or money held by it as
provided in Sections 6.01 and 6.02 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such U.S. Government Obligations, other government
obligations or money were deposited or received.
Section 6.04
Paying Agent to Repay Moneys Held
.
Upon the satisfaction and discharge of this Indenture all moneys then held by any Paying Agent
under the provisions of this Indenture shall, upon demand of the Company, be repaid to it or paid
to the appropriate Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
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Section 6.05
Return of Unclaimed Moneys
.
Any moneys deposited with or paid to the Trustee or any Paying Agent for the Securities of any
series pursuant to this Article, or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on Securities of such series and not applied
but remaining unclaimed by the Holders of Securities of such series for two years after the date
upon which the principal of and premium, if any, or interest, if any, on such Securities, as the
case may be, shall have become due and payable, shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Company
by such Trustee or any Paying Agent on demand or (if then held by the Company) shall be discharged
from such trust; and the Holder of any such Securities entitled to receive such payment shall
thereafter look only to the Company for the payment thereof;
provided
,
however
, that, before being
required to make any such repayment, such Trustee may (at the expense of the Company) cause to be
published once a week for two successive weeks, in each case on any day of the week, in an
Authorized Newspaper in the same city in which the Place of Payment with respect to Securities of
such series shall be located and in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, a notice (in such form as may be deemed appropriate by such Trustee) that said moneys
remain unclaimed and that, after a date named therein, any unclaimed balance of said moneys then
remaining will be returned to the Company.
ARTICLE VII
REMEDIES
Section 7.01
Events of Default
.
Event of Default whenever used herein with respect to Securities of any series means any one
of the following events and such other events as may be established with respect to the Securities
of such series as contemplated by Section 3.01 hereof, continued for the period of time, if any,
and after the giving of notice, if any, designated herein or therein, as the case may be, unless
the same is either not applicable to the Securities of such series or is deleted or modified in the
terms of the Securities of such series established as contemplated by Section 3.01 hereof:
(a) default in the payment of any interest upon any Security of such series when the
same becomes due and payable, whether or not such payment shall be prohibited by Article
Thirteen, 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
(b) default in the payment of all or any part of the principal of (or premium, if any,
on) any Security of such series at its Maturity, whether or not such payment shall be
prohibited by Article Thirteen; or
(c) default in the making or satisfaction of any sinking fund payment or analogous
obligation when the same becomes due and payable by the terms of the Securities of such
series; or
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(d) default in the performance, or breach, of any covenant or warranty of the Company
in respect of the Securities of such series contained in this Indenture or in such
Securities (other than a covenant or warranty in respect of the Securities of such series a
default in whose performance or whose breach is elsewhere in this Section 7.01 specifically
dealt with) or established as contemplated by Section 3.01 hereof for the Securities of such
series, and continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee for the
Securities of such series, or to the Company and such Trustee by the Holders of at least 25%
in principal amount of the Outstanding 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; or
(e) the entry of a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under Title 11 of the United States Code as now constituted or hereafter amended
(the
Federal Bankruptcy Code
) or any other applicable Federal or State law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or
the consent by it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in furtherance of any
such action; or
(g) any other Event of Default established as contemplated by Section 3.01 hereof for
Securities of such series.
Section 7.02
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default with respect to Securities of any series at the time outstanding occurs
and is continuing, then and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities of such series may
declare the principal amount (or, if the 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 all the 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 Holders), and upon any such declaration of acceleration
the same shall become immediately due and payable, anything in this
33
Indenture or in the Securities of such series or any resolution of the Board of Directors
relating thereto contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained or entered as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may waive all defaults with respect to
such Securities and rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all overdue installments of interest, if any, on all Securities of
such series;
(ii) the principal of (and premium, if any, on) any and all Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the Overdue Rate applicable to the
Securities of such series;
(iii) to the extent that payment of such interest is lawful, interest
upon any overdue installment of interest at the Overdue Rate applicable to
the Securities of such series;
(iv) 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 other amounts owing the Trustee under
Section 8.07; and
(b) all Events of Default with respect to Securities of such series, other than the
non-payment of the principal of Securities which have become due solely by such
acceleration, have been cured or waived as provided in
Section 7.13 or 12.07 hereof.
No such waiver and rescission shall affect any subsequent default or impair any right consequent
thereon.
Section 7.03
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company covenants that if
(a) default is made in the payment of any installment of interest on any Security of
any series when such interest becomes due and payable and such default continues for a
period of 30 days,
(b) default is made in the payment of all or any part of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof, or
34
(c) default is made in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due pursuant to the terms of the Securities of
any series established as contemplated by Section 3.01,
the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holder of
any such Security (or Holders of Securities of any such series in the case of clause (c) above),
the whole amount then due and payable on any such Security (or Securities of any such series in the
case of clause (c) above) for principal, premium, if any, and interest, if any, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of such interest shall
be legally enforceable, upon any overdue installment of interest, at the Overdue Rate of any such
Security (or Securities of any such series in the case of clause (c) above); 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 such Trustee, its
agents and counsel, and all other amounts owing the Trustee under Section 8.07.
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 or final decrees, and may
enforce the same against the Company or any other obligor upon such Securities 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 Securities, wherever situated.
If an Event of Default occurs and is continuing with respect to the Securities of any series,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of the Securities of such series by such appropriate judicial proceedings as such 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 7.04
Trustee May File Proofs of Claim
.
The Trustee (irrespective of whether the principal of the Securities of any series 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 proceeding or otherwise, in case
of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities of such series or the property of the Company or of such other
obligor or their creditors,
(i) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to such series pursuant to a declaration in accordance with
Section 7.02 hereof), premium, if any, and interest, if any, owing and
unpaid in respect of the Securities of such series and to file such other
35
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 of the Securities of such series
allowed in such judicial proceeding, and
(ii) 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, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee,
and in the event that such Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to 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 8.07 hereof.
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 Securities of any series 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 7.05
Trustee May Enforce Claims without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities of any series may be
prosecuted and enforced by the Trustee without the possession of any of the Securities of such
series 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 Securities in respect of which such judgment has been recovered.
Section 7.06
Application of Money Collected
.
Any moneys 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 (or premium, if any) or interest, if any, upon presentation of the several
Securities with respect to which such moneys were collected, 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 8.07 hereof.
SECOND: To holders of Senior Indebtedness of the Company to the extent required by
Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid upon such Securities for
principal (and premium, if any) and interest, if any, in respect of which or
36
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 Securities for
principal (and premium, if any) and interest, if any, respectively.
FOURTH: The balance, if any, to the Company.
Section 7.07
Limitation on Suits
.
No Holder of any Security of any series 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 other similar official), or for any other remedy hereunder, unless
(1) an Event of Default shall have occurred and be continuing and such Holder
previously shall have given to the Trustee written notice of default with respect to the
Securities of such series and of the continuance thereof;
(2) the Holders of not less than 25% in principal amount of the Outstanding 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 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 Securities of such series;
it being understood and intended that no one or more Holders of Securities of such series 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 Holders of Securities of such
series, or to obtain or to seek to obtain priority or preference over any other 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 the Holders of the Securities of such series.
Section 7.08
Unconditional Right of Holders to Receive Principal, Premium and Interest
.
Notwithstanding any other provision of this Indenture, the Holder of a Security of any series
shall have the right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Section 3.08) interest, if any, on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
37
Section 7.09
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case the
Company, the Trustee and such Holder 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 such Trustee and such Holder shall continue as though no such proceeding had been
instituted.
Section 7.10
Rights and Remedies Cumulative
.
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders of the
Securities of any series 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 7.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of the Holders of the Securities of any series 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 such Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by such Holders, as the
case may be.
Section 7.12
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding 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,
provided
that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture, unduly prejudice the rights of the Holders or involve the Trustee in personal
liability, cost or expense for which it determines it has insufficient security or indemnity
(it being understood that the Trustee shall have no obligation to make any determination
with respect to such conflict, prejudice or liability), and
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 7.13
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default
38
(a) in the payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series, or in the payment of any sinking fund installment or analogous
obligation with respect to the Securities of such series, or
(b) in respect of a coven
ant or provision hereof which under Article XI hereof
cannot be modified or amended without the consent of the Holder of each Outstanding Security
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 7.14
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of a Security 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 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 due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 7.14 shall not apply to any suit instituted by such
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 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, if any, on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
Section 7.15
Waiver of Stay or Extension Laws
.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VIII
THE TRUSTEE
Section 8.01
Certain Duties and Responsibilities
.
(a) Except during the continuance of an Event of Default with respect to the Securities
of any series,
39
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series and all other series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect to the
Securities of any series, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to the Securities of such series, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct,
except
that
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section 8.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in respect of the Securities of any
series in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of such series
pursuant to Section 7.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(iv) 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.
40
(d) 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 8.01.
Section 8.02
Notice of Defaults
.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit by mail to all Holders of the Securities of such series, as
their names and addresses appear in the Securities Register, notice of such default hereunder with
respect to the Securities of such series known to the Trustee, unless such default shall have been
cured or waived;
provided
,
however
, that, except in the case of a default in the payment of
principal of (or premium, if any) or interest, if any, on any Security of such series, or in the
payment of any sinking fund installment or analogous obligation in respect thereof, 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 determine that the withholding of such notice is in the interest of such Holders; and
provided
,
further
, that in the case of any default of the character specified in Section 7.01(d)
hereof no such notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section 8.02, the term
default
means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 8.03
Certain Rights of Trustee
.
Subject to Section 8.01 hereof:
(a) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, 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, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order and any resolution of the
Board of Directors may 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 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, order or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to such Trustee
41
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 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;
(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;
(h) except with respect to Section 12.01, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to covenants contained in Article XII. In
addition, the Trustee shall not be deemed to have knowledge of an Event of Default except
(i) any default or Event of Default occurring pursuant to Sections 12.01, 7.01(a) or 7.01(b)
or (ii) any default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge; and
(i) delivery of reports, information and documents to the Trustee under Section 9.04 is
for informational purposes only and the Trustees receipt of the foregoing shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Companys compliance with any of their
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers
Certificates).
Section 8.04
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee and any
Authenticating Agent assume no responsibility for their correctness. The Trustee and any
Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee and any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 8.05
May Hold Securities
.
The Trustee, any Paying Agent, Securities Registrar, Authenticating Agent or any other agent
of the Company or the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities of any series and may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such
other agent.
42
Section 8.06
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on or investment
of any money received by it hereunder except as otherwise agreed with the Company and for the sole
benefit of the Company.
Section 8.07
Compensation and Reimbursement
.
The Company agrees
(a) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) 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 and of any
Authenticating Agent), except to the extent any such expense, disbursement or advance may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and its agents for, and to hold them harmless against, any
loss, liability or expense arising out of or in connection with the acceptance or
administration of this trust and performance of their duties hereunder, including the costs
and expenses (including fees and disbursements of their counsel) of defending themselves
against any claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder, except as to the Trustee or any agent to the extent any
such loss, liability or expense may be attributable to its own negligence or bad faith.
As security for the performance of the obligations of the Company under this Section 8.07, the
Trustee shall have a lien prior to the Securities 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, if any, on particular Securities. The provisions of this Section 8.07 shall
survive any Trustee succession and the satisfaction and discharge of this Indenture. Trustee for
purposes of this Section 8.07 shall include any predecessor trustee but the negligence and bad
faith of any Trustee shall not affect the rights of any other Trustee under this Section 8.07.
Section 8.08
Disqualification; Conflicting Interests
.
Reference is made to Section 310(b) of the Trust Indenture Act. For purposes of Section
310(b)(l) of the Trust Indenture Act no Trustee shall be deemed to have a conflicting interest by
virtue of being Trustee for the Securities of more than one series.
43
Section 8.09
Corporate Trustee Required; Different Trustees for Different Series; Eligibility
.
There shall at all times be a Trustee hereunder for the Securities of each series which shall
be a corporation organized and doing business under the laws of the United States of America or of
any State or the District of Columbia authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority, and, if there is such a corporation that has a corporate
trust office in the Borough of Manhattan, The City of New York, the State of New York, or in such
other city as shall be established as contemplated by Section 3.01 with respect to the Securities
of any series that is willing to act upon reasonable and customary terms, having a corporate trust
office in the Borough of Manhattan or such other city. 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 8.09, 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. A different Trustee may be appointed by the Company for
the Securities of each series prior to the issuance of such Securities. If the initial Trustee for
the Securities of any series is to be other than U.S. Bank National Association (or its successor in interest hereunder, if any), the Company and
such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture
supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the
Securities of such series and 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. If at any time the Trustee for the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section 8.09, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 8.10
Resignation and Removal; Appointment of Successor
.
(a) No resignation or removal of the Trustee for the Securities of any series and no
appointment of a successor Trustee for the Securities of such series pursuant to this
Article shall become effective until the acceptance of appointment by the successor Trustee
under Section 8.11 hereof.
(b) The Trustee, or any Trustee or Trustees hereafter appointed for the Securities of
any series, may resign at any time with respect to the Securities of one or more or all such
series by giving written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee for the Securities of any series shall not have been delivered to the
Trustee for the Securities of such series within thirty 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 for the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with
respect to one or more or all such series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such one or more series (each voting as a
class) delivered to such Trustee and to the Company.
44
(d) If at any time:
(i) the Trustee for the Securities of any series shall fail to comply
with Section 310(b) of the Trust Indenture Act with respect to the
Securities of such series after written request therefor by the Company or
by any Holder of Securities of such series who has been a bona fide Holder
of a Security of such series for at least six months, or
(ii) such Trustee shall cease to be eligible under Section 8.09 hereof
and shall fail to resign after written request therefor by the Company or by
any such Holder of Securities, or
(iii) such Trustee shall become incapable of acting with respect to the
Securities of such series or shall be adjudged a bankrupt or insolvent or a
receiver of such Trustee or of its property shall be appointed or any public
officer shall take charge or control of such Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company by a Board Resolution may remove the Trustee, or (2)
subject to Section 7.14 hereof, any Holder of a Security of such series who has been a bona fide
Holder of such Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee for the Securities of such series.
(e) If the Trustee for the Securities of any series shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities
of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee for the Securities of such series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
for the Securities of such series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee for the Securities of such
series and supersede the successor Trustee appointed by the Company. If no successor Trustee
for the Securities of such series shall have been so appointed by the Company or such
Holders and accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee for the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee
for the Securities of any series and each appointment of a successor Trustee for the
Securities of such series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of the Securities of such series as their names and
addresses appear in the Securities Register. Each notice shall include the name of such
successor Trustee and the address of its Corporate Trust Office.
45
Section 8.11
Acceptance of Appointment by Successor
.
Every successor Trustee appointed hereunder 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, subject nevertheless to its lien, if any, provided for in
Section 8.07 hereof. Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certain vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee for the Securities of one or more
(but not all) series, the Company, the predecessor Trustee and each successor Trustee for the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee for the Securities of any series
as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor
Trustee, and 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.
No successor Trustee for the Securities of any series shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under Section 8.09.
Section 8.12
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee for the Securities of any series may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding
to all or substantially all of the corporate trust business of such Trustee, shall be the successor
of the Trustee for such series hereunder,
provided
such corporation shall be, with respect to such
series, otherwise qualified and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any Securities of any
series shall have been authenticated, but not delivered, by the Trustee for such series or an
Authenticating Agent for such series, then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
46
Section 8.13
Preferential Collection of Claims against Company
.
Reference is made to Section 311 of the Trust Indenture Act, for purposes of which:
(i) The term
cash transaction
means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand.
(ii) The term
self-liquidating paper
means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security,
provided
the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
Section 8.14
Authenticating Agent
.
The Trustee may appoint an Authenticating Agent for the Securities of each series which shall
be acceptable to the Company, to act on behalf of such Trustee and subject to its direction in
connection with the authentication of the Securities of such series. Each Authenticating Agent
shall at all times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal or State authority. 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 8.14 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.
Securities of any series authenticated by the Authenticating Agent for the Securities of such
series shall be entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee for the Securities of such series. Whenever
reference is made in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or such Trustees certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by the Authenticating Agent for the
Securities of such series and a certificate of authentication executed on behalf of the Trustee by
such Authenticating Agent.
47
Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to the Securities of all series for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent.
Any Authenticating Agent may at any time resign 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 for the Securities of any series 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 any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.14, with respect to the Securities of one or more
or all series, the Trustee promptly shall appoint a successor Authenticating Agent which shall be
acceptable to the Company, and upon doing so shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all Holders of the Securities of such series
as the names and addresses of such Holders appear upon the Securities Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder with like effect as if
originally appointed as Authenticating Agent hereunder. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.14.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be reimbursed for such payments
subject to the provisions of Section 8.07 hereof.
ARTICLE IX
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 9.01
Company to Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee (a) semi-annually, on a date
not more than 15 days after each regular record date with respect to an Interest Payment Date, if
any, for the Securities of each series, and (b) on semi-annual dates in each year to be established
as contemplated by Section 3.01 hereof if the Securities of any series do not bear interest and (c)
at such other times as the Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list in such form as the Trustee may reasonably require containing
all the information in the possession or control of the Company, or any of its Paying Agents other
than the Trustee, as to the names and addresses of the Holders of the Securities of such series,
obtained since the date as of which the next previous list, if any, was furnished. Any such list
may be dated as of a date not more than 15 days prior to the time such information is furnished or
caused to be furnished and need not include information received after such date;
provided
,
however
, that as long as the Trustee is the Securities Registrar for the Securities of such series,
no such list shall be required to be furnished.
48
Section 9.02
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 the Securities of each series contained in the most recent
list furnished to such Trustee as provided in Section 9.01 hereof or in the Securities
Register if such Trustee be the Securities Registrar for such series and the names and
addresses of Holders received by the Trustee in its capacity as Paying Agent for the
Securities of such series. The Trustee may destroy any list furnished to it as provided in
Section 9.01 hereof upon receipt of a new list so furnished.
(b) If three or more Holders of the Securities of any series (hereinafter referred to
as
applicants
) apply in writing to the Trustee, furnish to the Trustee reasonable proof
that each such applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders of the Securities of any series with
respect to their rights under this Indenture or under the Securities of any series and is
accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Subsection (a) of this Section 9.02,
or
(ii) inform such applicants as to the approximate number of such
Holders whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Subsection (a) of this Section 9.02,
and as to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
(c) If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall upon the written request of such applicants, mail to each
Holder to whom the applicant desires to communicate whose name and address appear in the
information preserved at the time by such Trustee in accordance with Subsection (a) of this
Section 9.02, a copy of the form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would be contrary
to the best interests of such Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
49
have been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(d) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee, nor any agent of the
Company or the Trustee, shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with Subsection (b)
of this Section 9.02, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material pursuant to
a request made under Subsection (b) of this Section 9.02.
Section 9.03
Reports by Trustee
.
(a) Within 60 days after the first May 15 which occurs not less than 60 days following
the first date of issuance of the Securities of any series under this Indenture and within
60 days after May 15 in every year thereafter, the Trustee shall transmit by mail to all
Holders of such series, as their names and addresses appear in the Securities Register, any
brief report, dated as of such May 15, required by Section 313(a) of the Trust Indenture Act
and at such other times in such manner such other reports as may be required by Section 313
of the Trust Indenture Act in each case with respect to the Securities of such series. A
copy of each such report shall, at the time of such transmission to such Holders, be filed
by such Trustee with each stock exchange upon which such Securities are listed and also with
the Commission. The Company will notify such Trustee when such Securities are listed on any
stock exchange.
Section 9.04
Reports by Company
.
The Company will
(a) file with the Trustee for the Securities of each series, within 15 Business Days
after the Company files the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations prescribe) which
the Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with such Trustee and the
Commission, in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Exchange Act of in respect of a security
listed and registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with such Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
50
documents and reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, as their names and addresses appear in the
Securities Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section 9.04 as may be required by rules and
regulations prescribed from time to time by the Commission.
(d) Notwithstanding the foregoing Section 9.04(a) and (b), the Company will be deemed
to have filed the reports required by Section 9.04(a) and (b) to the Trustee if it has filed
such reports with the SEC via the EDGAR filing system and such reports are publicly
available.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 10.01
Company May Consolidate, etc., Only on Certain Terms
.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease all or substantially all of its properties and assets to any Person or group of Persons other
than to a direct or indirect wholly-owned Subsidiary, unless:
(1) the Person formed by such consolidation or into which the Company is merged or the
Person or group of Persons that acquires by conveyance or transfer, or which leases, all or
substantially all of the properties and assets of the Company shall be a Person organized
and existing under the laws of the United States of America, any State thereof or the
District of Columbia, and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee for the Securities of each series in form satisfactory
to such Trustee, the due and punctual payment of the principal of and interest on all the
Securities 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 that, after notice or lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing other than an Event of Default which will be cured by such
merger or other transaction; and
(3) the Company has delivered to such Trustee an Officers Certificate and an Opinion
of Counsel each stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such transaction, and such
supplemental indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
The provisions of this Section 10.01 shall not be applicable to a merger or consolidation in
which the Company is the surviving corporation.
51
Section 10.02
Successor Person Substituted
.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets
of the Company substantially as an entirety in accordance with Section 10.01, the successor Person
formed by such consolidation or into which the Company is merged or to which such conveyance or
transfer 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 Person had been
named as the Company herein, and thereafter the predecessor Person shall be relieved of all
obligations and covenants under the Indenture and the Securities.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01
Supplemental Indentures without Consent of Holders
.
(a) Without the consent of any Holders, the Company, when authorized by 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:
(i) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(ii) to add to or modify the covenants or Events of Default of the
Company, for the benefit of the Holders of the Securities of any or all
series, to convey, transfer, assign, mortgage or pledge any property to or
with such Trustee, or to surrender any right or power herein conferred upon
the Company; or
(iii)
to make any change in Article XIII that would limit or
terminate the benefits available to any holder of Senior Indebtedness of the
Company (or Representatives thereof) under Article XIII; or
(iv) to establish the form and terms of the Securities of any series as
contemplated by Section 2.01 or 3.01 hereof; or
(v) to add to or change any of the provisions of this Indenture as is
necessary or advisable to facilitate the issuance of Securities of any
series in bearer form, registrable or nonregistrable as to principal and
with or without interest coupons, and to provide for exchangeability of such
Securities with the Securities of the same series issued hereunder in fully
registered form and to make all appropriate changes for such purpose, or to
permit or facilitate the issuance of Securities in uncertificated form; or
52
(vi) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; or
(vii) to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests
of the Holders in any material respect; or
(viii) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article VI, provided that
any such action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any material
respect;
(ix) to add to or change 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 of, or premium, if
any, or interest on bearer Securities or on the delivery of bearer
Securities, or to permit bearer Securities to be issued in exchange for
bearer Securities of other authorized denominations,
provided
any such
action shall not adversely affect the interests of the Holders of bearer
Securities of any series or any related coupons in any material respect
unless such amendment is required to comply with the Bearer Rules; or
(x) to evidence and provide for the acceptance of appointment hereunder
of a Trustee other than U.S. Bank National Association (or its
successor in interest hereunder, if any), as
Trustee for the Securities of any series of Securities 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 8.09 hereof; or
(xi) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series or 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 8.11 hereof; or
(xii) to add to, change or eliminate any of the provisions of this
Indenture;
provided
, that any such addition, change or elimination (i) shall
become effective only when no Security of any series entitled to the
benefits of such provision and issued prior to the execution of such
supplemental indenture is outstanding or (ii) shall not apply to any
outstanding Security.
53
(b) An amendment under this Section 11.01 may not make any change that adversely
affects the rights under Article XIII of any holder of Senior Indebtedness of the
Company then outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
Section 11.02
Supplemental Indentures with Consent of Holders
.
Subject to Sections 7.12 and 7.13 hereof, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of each series affected
thereby, by Act of said Holders delivered to the Company and the Trustee, the Company, when
authorized by 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 of the Securities of such series under this Indenture;
provided
,
however
, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of interest on,
any Security, or reduce the principal amount thereof or the interest thereon, or any premium
payable on the redemption thereof, or change the Place of Payment, or the coin or currency
in which any Security or the interest, if any, thereon is payable, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and payable upon an
acceleration of the Maturity thereof or adversely affect the right of repayment, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed for, any
payment under the sinking fund for any Security, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding 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
(c) modify the provisions of this Indenture with respect to the subordination of the
Securities of any series in a manner adverse to the Holders thereof, or
(d) modify any of the provisions of this Section 11.02 or Section 7.13 hereof, 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 Security
affected thereby.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has been expressly included solely for the benefit of the Securities of one or more
particular series, or which modifies the rights of the Holders of the Securities of one or more
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 the Securities of any other series.
54
It shall not be necessary for any Act of Holders under this Section 11.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
An amendment under this Section 11.02 may not make any change that adversely affects the
rights under Article XIII of any holder of Senior Indebtedness then outstanding unless the
holders of such Senior Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
Section 11.03
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 for the Securities of any series shall be entitled to receive, and (subject to Sections
8.01 and 8.03 hereof) 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. Such
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects such Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 11.04
Notice of Supplemental Indenture
.
Promptly after the execution by the Company and the appropriate Trustee of any supplemental
indenture pursuant to Section 11.02 hereof, the Company shall transmit by mail to all Holders of
Securities of any series affected thereby, as their names and addresses appear in the Securities
Register, a notice setting forth in general terms the substance of such supplemental indenture.
Section 11.05
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this indenture shall be
modified in accordance therewith but only with respect to the Securities of each series affected by
such supplemental indenture, and such supplemental indenture shall form a part of this Indenture
for all purposes with respect to the Securities of such series; and every Holder of Securities of
any such series theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 11.06
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.
55
Section 11.07
Reference in Securities to Supplemental Indentures
.
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 Securities 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 or on behalf of such Trustee in exchange for Outstanding
Securities of the same series.
ARTICLE XII
COVENANTS
Section 12.01
Payment of Principal, Premium and Interest
.
The Company will duly and punctually pay the principal of, premium, if any, and interest, if
any, on the Securities of each series in accordance with the terms of such Securities established
as contemplated by Section 3.01 and this Indenture.
Section 12.02
Maintenance of Office or Agency
.
The Company will maintain in each Place of Payment for the Securities of any series, an office
or agency where Securities of such series may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of such series and this
Indenture may be served;
provided
,
however
, that at the option of the Company payment of interest
may be made (subject to collection) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register. With respect to the Securities of any
series, such office or agency and each Place of Payment shall be as established as contemplated by
Section 3.01. In the absence of establishment as contemplated by Section 3.01 with respect to the
Securities of any series, (i) the Place of Payment for such Securities shall be in the city that
the Corporate Trust Office shall be in and (ii) such office or agency in such Place of Payment
shall initially be the Corporate Trust Office of the Trustee. 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 for the Securities of each series with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office
of such Trustee, and the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands with respect to the Securities of such series.
The Company may also from time to time designate one or more other offices or agencies (in or
outside the Place of Payment) where the Securities of one or more series may be presented or
surrendered for any or all of such purposes specified above, 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 such
purpose.
56
Section 12.03
Money for Securities Payments to Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of (and premium, if any) or interest, if any, on, any of the Securities of
any series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal, premium, if any, or interest, if any, 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 such series of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or before each due date
of the principal of (and premium, if any) or interest, if any, on, any
Securities of any series, deposit with a Paying Agent for the Securities of such series a sum
sufficient to pay the principal, premium, if any, or interest, if any, so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal, premium or interest, if
any, and (unless such Paying Agent is the Trustee for the Securities of such series) the Company
will promptly notify such Trustee at its Corporate Trust Office of its failure so to act.
The Company will cause each Paying Agent for the Securities of any series 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 12.03, that such Paying Agent will
(a) hold all sums held by it for the payment of the principal of, premium, if any, or
interest, if any, on the Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(b) give such Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any payment of principal, premium, if any,
or interest, if any; and
(c) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
such 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 such Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Section 12.04
Statement as to Compliance
.
The Company will file with the Trustee within four months after the close of each fiscal year
(which, until the Company shall otherwise notify the Trustee, shall be deemed to be the calendar
year) a brief certificate, which need not comply with Section 1.02 hereof, from the
57
principal
executive, financial or accounting officer of the Company as to his or her knowledge of the
Companys compliance with all conditions and covenants under this Indenture (without regard to any
period of grace or requirement of notice provided in this Indenture).
Section 12.05
Corporate Existence
.
Subject to Article X hereof, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 12.06
Permit No Vacancy in Office of Trustee
.
The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee for
the Securities of any series, will appoint, in the manner provided in Section 8.10 hereof, a
Trustee for the Securities of such series, so that there shall at all times be a Trustee for the
Securities of every series hereunder.
Section 12.07
Waiver
.
Without limitation of the rights of the Holders and the Company with respect to waivers and
amendments set forth in Sections 7.13 and 11.02, the Company may omit in any particular instance to
comply with a covenant or provision hereof which non-compliance could constitute a default
hereunder (other than (i) a covenant or provision with respect to the payment of the principal of
(or premium, if any) or interest, if any, on any Security of any series, or in payment of any
sinking fund installment or analogous obligation with respect to the Securities of such series or
(ii) a covenant or provision which under Article XI hereof cannot be modified or amended
without the consent of the Holder of each Outstanding Security affected), if before or after the
time for such compliance the Holders of at least a majority in principal amount of the Securities
at the time Outstanding of any series affected by the omission shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with such covenant or
provision, but no such waiver shall extend to or affect such covenant or provision 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 provision shall remain in
full force and effect.
ARTICLE XIII
SUBORDINATION OF THE SECURITIES
Section 13.01
Agreement to Subordinate
.
The Company agrees, and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article XIII, to the prior payment in full of all existing and future Senior
Indebtedness of the Company and that the subordination is for the benefit of and enforceable by the
holders of such Senior Indebtedness. All provisions of this Article XIII shall be subject to
Section 13.12.
58
Section 13.02
Liquidation, Dissolution, Bankruptcy.
Upon any payment or distribution of the assets of the Company to creditors upon a total or
partial liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the Company or its
property or upon an assignment by the Company for the benefit of creditors:
(a) holders of Senior Indebtedness of the Company shall be entitled to receive payment
in full in cash (or other consideration acceptable to the applicable holder of Senior
Indebtedness) of such Senior Indebtedness (including interest accruing after, or which would
accrue but for, the commencement of any such proceeding at the rate specified in the
applicable Senior Indebtedness, whether or not a claim for such interest would be allowed)
before any payment or distribution (other than Permitted Junior Securities), whether in
cash, securities or other property, shall be made by the Company on account of principal,
interest or other amounts owing in respect of the Securities; and
(b) until the Senior Indebtedness of the Company is paid in full in cash (or other
consideration acceptable to the applicable holder of Senior Indebtedness), any payment or
distribution (other than Permitted Junior Securities), whether in cash, securities or other
property, to which Holders would be entitled but for this Article XIII shall be made to
holders of such Senior Indebtedness, for application to the payment thereof, as their
interests may appear, except that the Holders may receive and retain payments made from the
trust described under Article VI, so long as, on the date or dates the respective amounts
were paid into the trust such payments were made with respect to the Securities without
violating this Article XIII.
Section 13.03
Default on Senior Indebtedness
.
The Company may not pay principal of, premium (if any) or interest on, the Securities or make
any deposit pursuant to the provisions described under Section 6.02 and may not otherwise purchase,
redeem or otherwise retire any Securities (except that the Holders may receive and retain (a)
Permitted Junior Securities and (b) payments made from the trust described under Article VI)
(collectively, pay the Securities) if:
(A) a default in the payment of the principal of, premium, if
any, or interest on any Senior Indebtedness of the Company occurs
and is continuing or any other amount owing in respect of any Senior
Indebtedness of the Company is not paid when due, or
(B) any other default occurs with respect to Senior
Indebtedness of the Company and the maturity of such Senior
Indebtedness of the Company is accelerated in accordance with its
terms,
unless, in either case, the default has been cured or waived and any such acceleration has
been rescinded or such Designated Senior Indebtedness has been paid in full in cash (or
other consideration acceptable to the applicable holder of Senior Indebtedness).
59
Section 13.04
Acceleration of Payment of Securities
.
In the event that any Securities are declared due and payable before their Stated Maturity,
then and in such event the holders of Senior Indebtedness of the Company shall be entitled to
receive payment in full in cash (or other consideration acceptable to the applicable holder of
Senior Indebtedness) of such Senior Indebtedness (including interest accruing after, or which would
accrue but for, the commencement of any such proceeding at the rate specified in the applicable
Senior Indebtedness, whether or not a claim for such interest would be allowed) before any payment
or distribution, whether in cash, securities or other property, shall be made by the Company on
account of principal, interest or other amounts owing in respect of the Securities or on account of
purchase or other acquisition of Securities by the Company; provided, however, that nothing in this
Section 13.04 shall prevent the satisfaction of any sinking fund payment in accordance with this
Indenture or as otherwise specified for the Securities of any series by delivering and crediting
pursuant to Section 5.02 or as otherwise specified for the Securities of any series Securities
which have been acquired (upon redemption or otherwise) prior to such declaration of acceleration.
Section 13.05
When Distribution Must Be Paid Over
.
If any distr
ibution is made to the Trustee or to the Holders that because of this Article
XIII should not have been made to them, the Trustee or such Holders who receive the
distribution, as applicable, shall hold such distribution in trust for holders of Senior
Indebtedness of the Company and shall, upon the written instruction of the Company, pay it over to
them as their interests may appear. Nothing contained in this Article XIII or elsewhere in this
Indenture shall prevent (a) the Company, at any time except under the conditions specified in
sections 13.02, 13.03 and 13.04, from making payments at any time of principal of (and premium, if
any) or interest on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and premium, if any) or
interest on the Securities or the retention of such payment by the Holders if, at the time of such
application by the Trustee, the conditions specified in sections 13.02, 13.03 and 13.04 did not
exist.
Section 13.06
Subrogation
.
After all Senior Indebtedness of the Company is paid in full and until the Securities are paid
in full, the Holders shall, to the extent of the payments or distributions made to the holders of
Senior Indebtedness pursuant to this Article XIII, be subrogated (equally and ratably with all
other indebtedness as to which the right to receive payment is pari passu with the Securities) to
the rights of holders of such Senior Indebtedness to receive distributions
applicable to Senior Indebtedness of the Company. A distribution made
under this Article XIII to holders of Senior Indebtedness which otherwise would have been made to the Holders is
not, as between the Company and the Holders, a payment by the Company on such Senior Indebtedness.
Section 13.07
Relative Rights
.
This
Article XIII defines the relative rights of the Holders and holders of Senior
Indebtedness of the Company. Nothing in this Indenture shall:
60
(a) impair, as between the Company and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay principal of and interest on the Securities in
accordance with their terms; or
(b) prevent the Trustee or any Holder from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness of the Company to receive
distributions otherwise payable to the Holders.
Section 13.08
Subordination May Not Be Impaired by Company
.
No right of any holder of Senior Indebtedness of the Company to enforce the subordination of
the Indebtedness evidenced by the Securities shall be impaired by any act or failure to act by the
Company or by its failure to comply with this Indenture.
Section 13.09
Rights of Trustee and Paying Agent
.
Notwithstanding Section 13.03, the Trustee or any Paying Agent may continue to make payments
on the Securities and shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless, not less than two Business Days prior to the date
of such payment, a Responsible Officer of the Trustee receives notice satisfactory to it that
payments may not be made under this Article XIII. The Company, the Registrar, any Paying Agent,
a Representative or a holder of Senior Indebtedness of the Company may give the notice;
provided
,
however
, that, if an issue of Senior Indebtedness of the Company has a Representative, only the
Representative may give the notice.
The Trustee in
its individual or any other capacity may hold Senior Indebtedness of the
Company with the same rights it would have if it were not Trustee. The Registrar and any Paying
Agent may do the same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article XIII with respect to any Senior Indebtedness of the Company which may at any
time be held by it, to the same extent as any other holder of such Senior Indebtedness; and nothing
in Article VIII shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XIII shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 8.07 or any other Section of this Indenture.
Section 13.10
Distribution or Notice to Representative
.
Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness of
the Company, the distribution may be made and the notice given to their Representative (if any).
Section 13.11
Article XIII Not to Prevent Events of Default or Limit Right to Accelerate
.
The failure to make a payment pursuant to the terms of the Securities by reason of any
provision in this Article XIII shall not be construed as preventing the occurrence of a Default
in respect thereof. Nothing in this Article XIII shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Securities.
61
Section 13.12
Trust Monies Not Subordinated
.
Notwithstanding anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article VI by the Trustee and deposited at a time
when permitted by the subordination provisions of this Article XIII for the payment of
principal of and interest on the Securities shall not be subordinated to the prior payment of any
Senior Indebtedness of the Company or subject to the restrictions set forth in this Article
XIII, and none of the Trustee or the Holders shall be obligated to pay over any such amount to
the Company or any holder of Senior Indebtedness of the Company or any other creditor of the
Company.
Section 13.13
Trustee Entitled to Rely
.
Upon any payment or distribution pursuant to this Article XIII, the Trustee and the
Holders shall be entitled to rely (a) upon any order or decree of a court of competent jurisdiction
in which any proceedings of the nature referred to in Section 13.02 are pending, (b) upon a
certificate of the liquidating trustee or agent or other Person making such payment or distribution
to the Trustee or to the Holders or (c) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of such Senior Indebtedness and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XIII. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate in any payment
or distribution pursuant to this Article XIII, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this Article XIII,
and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment. The provisions of
Sections 8.01 and 8.02 shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article XIII.
Section 13.14
Trustee to Effectuate Subordination
.
Each Holder by accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Indebtedness of the Company as provided in this
Article XIII and appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 13.15
Trustee Not Fiduciary for Holders of Senior Indebtedness
.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to the Holders or the Company or any other Person money or
assets to which any
holders of Senior Indebtedness of the Company shall be entitled by virtue of this Article XIII
or otherwise.
62
Section 13.16
Reliance by Holders of Senior Indebtedness on Subordination Provisions
.
Each Holder by accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness of the Company, whether such Senior Indebtedness was created or acquired before
or after the issuance of the Securities, to acquire and continue to hold, or to continue to hold,
such Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness of the Company may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders, without incurring responsibility to the Trustee or the
Holders and without impairing or releasing the subordination provided
in this Article XIII or
the obligations hereunder of the Holders to the holders of the Senior Indebtedness of
the Company, do any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness of the Company, or
otherwise amend or supplement in any manner Senior Indebtedness of the Company, or any instrument
evidencing the same or any agreement under which Senior Indebtedness of the Company is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness of the Company; (iii) release any Person liable in any manner for the
payment or collection of Senior Indebtedness of the Company; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
63
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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SELECTIVE INSURANCE GROUP, INC.
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By:
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Name:
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Dale A. Thatcher
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Title:
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Executive Vice President,
Treasurer and Chief Financial
Officer
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U.S. BANK NATIONAL ASSOCIATION
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By:
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Name:
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Title:
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