AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 25, 2003
REGISTRATION STATEMENT NO. 333-
333- -01
333- -02
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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REINSURANCE GROUP OF AMERICA, INCORPORATED
RGA CAPITAL TRUST III
RGA CAPITAL TRUST IV
(Exact name of registrants as specified in their respective charters)
MISSOURI 46-1627032
DELAWARE 41-6521118
DELAWARE 41-6521120
(State or other jurisdiction of incorporation or (IRS Employer Identification No.)
organization)
1370 TIMBERLAKE MANOR PARKWAY
CHESTERFIELD, MISSOURI 63017-6039
(636) 736-7000
(Address, including zip code, and telephone number, including area code
of registrants' principal executive offices)
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JACK B. LAY COPIES TO:
Executive Vice President and Chief Financial Officer R. RANDALL WANG, ESQ.
Reinsurance Group of America, Incorporated JAMES R. LEVEY, ESQ.
1370 Timberlake Manor Parkway GREGORY A. BILLHARTZ, ESQ.
Chesterfield, Missouri 63017-6039 Bryan Cave LLP
314-736-7000 One Metropolitan Square, Suite 3600
(Name, address, including zip code, and telephone St. Louis, Missouri 63102
number, including area code, of agent for service) 314-259-2000
Fax 314-259-6580
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1),(2),(3) UNIT PRICE FEE
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Debt Securities of RGA(5)...................
Preferred Stock of RGA(5)...................
Depositary Shares of RGA(5).................
Common Stock of RGA(5)......................
Warrants (6)................................
Purchase Contracts of RGA(7)................
Units (8)...................................
Preferred Securities of RGA Capital Trust
III.......................................
Preferred Securities of RGA Capital Trust
IV........................................
Guarantees of the Preferred Securities of
RGA Capital Trust III and RGA Capital
Trust IV by RGA(9)........................ $800,000,000 (4) $800,000,000 $64,720
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(1) The total amount registered under this registration statement is
$800,000,000.
(2) Includes such indeterminate number of shares of common stock and preferred
stock of Reinsurance Group of America, Incorporated ("RGA"), such
indeterminate number or amount of depositary shares, warrants, purchase
contracts and units of RGA, and such indeterminate principal amount of debt
securities of RGA, and such indeterminate number of shares of preferred
securities ("Preferred Securities") of RGA Capital Trust III and RGA Capital
Trust IV (the "RGA Trusts") as may from time to time be issued at
indeterminate prices. Debt securities of RGA may be issued and sold to the
RGA Trusts, in which event such debt securities may later be distributed to
the holders of preferred securities of the RGA Trusts upon a dissolution of
any such RGA Trust and the distribution of the assets thereof.
(3) Represents the aggregate initial offering price of all securities sold.
Amounts represent United States Dollars or the equivalent thereof in one or
more foreign denominated currencies or currency units (based on the
applicable exchange rate at the time of sale) if debt securities are issued
with principal amounts denominated in one or more foreign or composite
currencies as shall be designated by the registrant.
(4) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933 and exclusive
of accrued interest and dividends, if any. Rule 457(o) permits the
registration fee to be calculated on the basis of the maximum offering price
of all of the securities listed and, therefore, the table does not specify
by each class information as to the amount to be registered, the maximum
offering price per unit or the proposed maximum aggregate offering price.
(5) Also includes such indeterminate number of shares of preferred stock and
common stock or amount of debt securities as may be issued upon conversion
of or exchange for any debt securities or preferred stock that provide for
conversion into or exchange for other securities. No separate consideration
will be received for the preferred stock or common stock or amount of debt
securities issuable upon conversion of or in exchange for debt securities or
preferred stock. Also consists of such indeterminate number of shares of
common stock, or preferred stock, depositary shares or other securities of
RGA to be issuable by RGA upon settlement of the warrants, purchase
contracts or units of RGA.
(6) Subject to note (1) above, there is being registered hereunder an
indeterminate amount and number of warrants, representing rights to purchase
debt securities or common stock or preferred stock registered hereunder.
(7) Each purchase contract of the registrant obligates the registrant to sell,
and the holder thereof to purchase, an indeterminate number of debt
securities, shares of common stock, preferred stock, depositary shares or
warrants of RGA or Preferred Securities of an RGA Trust.
(8) Each Unit consists of any combination of two or more of the securities being
registered hereby.
(9) Includes the rights of holders of the Preferred Securities under the
Guarantees of Preferred Securities and back-up undertakings, consisting of
obligations of RGA to provide certain indemnities in respect of, and pay and
be responsible for, certain expenses, costs, liabilities and debts of, as
applicable, the RGA Trusts as set forth in the indenture and any applicable
supplemental indentures thereto and the debt securities issued to the RGA
Trusts, in each case as further described in the registration statement. No
separate consideration will be received for the guarantees or any back-up
undertakings.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 25, 2003
PROSPECTUS
$800,000,000
REINSURANCE GROUP OF AMERICA, INCORPORATED
Debt Securities, Preferred Stock, Depositary Shares, Common Stock,
Purchase Contracts, Warrants and Units
RGA CAPITAL TRUST III
RGA CAPITAL TRUST IV
Preferred Securities Fully, Irrevocably and Unconditionally Guaranteed
on a Subordinated Basis as described in this Document by
Reinsurance Group Of America, Incorporated
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Reinsurance Group of America, Incorporated and RGA Capital Trust III and
RGA Capital Trust IV may offer up to $800,000,000 of the securities listed
above, including units consisting of any two or more of such securities, from
time to time.
When RGA, RGA Capital Trust III or RGA Capital Trust IV decides to sell a
particular series of securities, we will prepare a prospectus supplement
describing those securities. You should read this prospectus and any prospectus
supplement carefully before you invest.
INVESTING IN THESE SECURITIES INVOLVES RISKS. CONSIDER CAREFULLY THE RISK
FACTORS BEGINNING ON PAGE 5 OF THIS PROSPECTUS.
RGA, RGA Capital Trust III or RGA Capital Trust IV may offer securities
through underwriting syndicates managed or co-managed by one or more
underwriters, or directly to purchasers. The prospectus supplement for each
offering of securities will describe in detail the plan of distribution for that
offering. For general information about the distribution of securities, please
see "Plan of Distribution" in this prospectus.
RGA's common stock is listed on the New York Stock Exchange under the
symbol "RGA." We have not yet determined whether any of the other securities
that may be offered by this prospectus will be listed on any exchange, or
included in any inter-dealer quotation system or over-the-counter market. If we
decide to seek the listing or inclusion of any such securities upon issuance,
the prospectus supplement relating to those securities will disclose the
exchange, quotation system or market on or in which the securities will be
listed or included.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 2003
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we and RGA Capital
Trust III and RGA Capital Trust IV, which we refer to as the "RGA trusts," filed
with the Securities and Exchange Commission, which we refer to as the "SEC,"
utilizing a "shelf" registration process. Under this shelf process, we may, from
time to time, sell any combination of the securities described in this
prospectus in one or more offerings up to a total amount of $800,000,000 or the
equivalent of this amount in foreign currencies or foreign currency units.
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. You
should not assume that the information in this prospectus, or any supplement to
this prospectus, is accurate at any date other than the date indicated on the
cover page of these documents.
TABLE OF CONTENTS
PAGE
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About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Incorporation of Certain Documents by Reference............. 3
Risk Factors................................................ 5
Cautionary Statement Regarding Forward-Looking Statements... 11
Information About RGA....................................... 12
Information about the RGA Trusts............................ 13
Use of Proceeds............................................. 14
Ratio of Earnings to Fixed Charges and Ratio of Combined
Fixed Charges and Preference Dividends to Earnings........ 14
Description of Debt Securities of RGA....................... 15
Description of Capital Stock of RGA......................... 28
Description of Depositary Shares of RGA..................... 35
Description of Warrants of RGA.............................. 38
Description of Purchase Contracts of RGA.................... 39
Description of Units of RGA................................. 40
Description of Preferred Securities of the RGA Trusts....... 41
Description of the Preferred Securities Guarantees of RGA... 43
Effect of Obligations Under the Junior Subordinated Debt
Securities and the Preferred Securities Guarantees........ 47
Plan of Distribution........................................ 48
Legal Matters............................................... 50
Experts..................................................... 50
WHERE YOU CAN FIND MORE INFORMATION
RGA is subject to the informational requirements of the Securities Exchange
Act of 1934. As a result, RGA files annual, quarterly and special reports, proxy
statements and other information with the SEC. Because our common stock trades
on the New York Stock Exchange under the symbol "RGA," those
2
materials can also be inspected and copied at the offices of that organization.
Here are ways you can review and obtain copies of this information:
WHAT IS AVAILABLE WHERE TO GET IT
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Paper copies of information.............. SEC's Public Reference Room
Judiciary Plaza Building
450 Fifth Street, N.W., Room 1024
Washington, D.C. 20549
The New York Stock Exchange
20 Broad Street
New York, New York 10005
On-line information, free of charge...... SEC's Internet website at
http://www.sec.gov
Information about the SEC's Public
Reference Rooms........................ Call the SEC at 1-800-SEC-0330
We and the RGA trusts have filed with the SEC a registration statement
under the Securities Act of 1933 that registers the distribution of these
securities. The registration statement, including the attached exhibits and
schedules, contains additional relevant information about us and the securities.
The rules and regulations of the SEC allow us to omit certain information
included in the registration statement from this prospectus. You can get a copy
of the registration statement, at prescribed rates, from the sources listed
above. The registration statement and the documents referred to below under
"Incorporation of Certain Documents by Reference" are also available on our
Internet website, http://www.rgare.com, under "Investor Relations -- SEC
filings". Information contained in our Internet website does not constitute a
part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is considered to be a part of this prospectus, except
for any information that is superseded by other information that is included in
or incorporated by reference into this document.
This prospectus incorporates by reference the documents listed below that
we have previously filed with the SEC (File No. 1-11848). These documents
contain important information about us.
- Our Annual Report on Form 10-K for the year ended December 31, 2002.
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003
and June 30, 2003.
- Our Current Reports on Form 8-K, filed June 2, 2003 and August 25, 2003.
- The description of our common stock contained in our Registration
Statement on Form 8-A dated April 6, 1993, as amended by Amendment No. 1
on Form 8-A/A dated April 27, 1993, including any amendments or reports
filed for the purpose of updating such description.
We incorporate by reference any additional documents that we may file with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 (other than those made pursuant to Item 9 or Item 12 of Form 8-K or
other information "furnished" to the SEC) between August 25, 2003, the date we
first filed the registration statement to which this prospectus relates, and the
termination of the offering of the securities. These documents may include
periodic reports, like Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q and Current Reports on Form 8-K, as well as Proxy Statements. Any material
that we subsequently file with the SEC will automatically update and replace the
information previously filed with the SEC.
You can obtain any of the documents incorporated by reference in this
prospectus from the SEC on its website (http://www.sec.gov). You can also obtain
these documents from us, without charge (other than
3
exhibits, unless the exhibits are specifically incorporated by reference), by
requesting them in writing or by telephone at the following address:
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
Attention: Jack B. Lay
Executive Vice President and Chief Financial Officer
(636) 736-7000
4
RISK FACTORS
Investing in securities offered by this prospectus involves certain risks.
Any of the following risks could materially adversely affect our business,
results of operations, or financial condition and could result in a loss of your
investment.
ADVERSE MORTALITY OR MORBIDITY EXPERIENCE MAY NEGATIVELY AFFECT OUR FINANCIAL
PERFORMANCE.
Our reinsurance contracts expose us to mortality risk, which is the risk
that the level of death claims may differ from that which we assumed in pricing
our life and annuity reinsurance contracts. Some of our reinsurance contracts
expose us to morbidity risk, which is the risk that an insured person will
become critically ill. We expect mortality and morbidity risk to fluctuate
somewhat from period to period, but believe they should remain fairly constant
over the long term. Mortality or morbidity experience that is less favorable
than the mortality or morbidity rates that we used in pricing a reinsurance
agreement will negatively affect our net income. Furthermore, even if the total
benefits paid over the life of the contract do not exceed the expected amount,
unexpected increases in the incidence of deaths or illness can cause us to pay
more benefits in a given reporting period than expected, adversely affecting
profitability in any particular quarter or year.
WE ARE CONTROLLED BY METLIFE, INC., AND THE INTERESTS OF METLIFE, INC. MAY
DIFFER FROM THE INTERESTS OF RGA AND ITS SECURITYHOLDERS.
MetLife, Inc., which we refer to as "MetLife," beneficially owned
approximately 58.7% of our outstanding common stock, as of June 30, 2003, and
several individuals employed by MetLife hold seats on our board of directors.
MetLife has the power, because of the voting power of the shares of common stock
beneficially held by it, to elect our board of directors, and to substantially
influence business combination transactions. For financial reporting purposes,
MetLife will include its share of our net income or loss in its consolidated
financial statements. Our board of directors, including members who are also
employed by or affiliated with MetLife, may consider not only the short-term and
long-term impact of operating decisions on us, but also the impact of such
decisions on MetLife and its affiliates.
OUR ABILITY TO PAY PRINCIPAL, INTEREST AND/OR DIVIDENDS ON SECURITIES IS
LIMITED.
We are a holding company, with our principal assets consisting of the stock
of our insurance company subsidiaries. Our ability to pay principal and interest
on any debt securities or dividends on any preferred or common stock depends in
part on the ability of our insurance company subsidiaries, our principal sources
of cash flow, to declare and distribute dividends. Regulatory restrictions may
limit these payments. Our insurance company subsidiaries are subject to various
statutory and regulatory restrictions, applicable to insurance companies
generally, that limit the amount of cash dividends, loans and advances that
those subsidiaries may pay to us. We indirectly own our principal operating
subsidiary, RGA Reinsurance Company, which we refer to as "RGA Reinsurance,"
through Reinsurance Company of Missouri, Incorporated, which we refer to as
"RCM." Both RCM and RGA Reinsurance are organized under Missouri insurance law,
which permits the payment of dividends or distributions which, together with
dividends or distributions paid during the preceding twelve months, do not
exceed the greater of:
- 10% of statutory capital and surplus as of the preceding December 31; or
- statutory net gain from operations for the preceding calendar year.
Any proposed dividend in excess of this amount is considered an
"extraordinary dividend" and may not be paid until it has been approved, or a
30-day waiting period has passed during which it has not been disapproved, by
the Missouri Director of Insurance. RCM's allowable dividend without prior
approval for 2003 is approximately $64.0 million pursuant to this calculation.
RGA Reinsurance's allowable dividend without prior approval for 2003 is
approximately $63.4 million pursuant to this calculation. Dividends may be paid
only to the extent the insurer has unassigned surplus, as opposed to contributed
surplus. As of December 31, 2002, which is the current determination date for
regulatory purposes, RCM and RGA Reinsurance had unassigned surplus of
approximately $28.9 million and $67.8 million, respectively. Because RCM is our
direct subsidiary
5
and RGA Reinsurance is a subsidiary of RCM, any dividends paid by RGA
Reinsurance would be paid to RCM. Our ability to make payments on debt
securities or to pay dividends on capital stock will depend on the ability of
RCM to pay dividends to us. As a result, without prior approval of the Missouri
Director of Insurance, we may only receive the allowable dividend for RCM, even
if the allowable dividend which could be paid to RCM by RGA Reinsurance were a
higher amount.
In contrast to Missouri law, the Model Insurance Holding Company Act of the
National Association of Insurance Commissioners, which we refer to as the
"NAIC," defines an "extraordinary dividend" as a dividend or distribution which,
together with dividends or distributions paid during the preceding twelve
months, exceeds the lesser of the two amounts described above. We are unable to
predict when or in what form Missouri will enact a new measure for extraordinary
dividends, and we cannot assure you that more stringent restrictions will not be
adopted from time to time in other jurisdictions in which our insurance
subsidiaries are domiciled, which could, under certain circumstances,
significantly reduce dividends or other amounts payable to us by our
subsidiaries unless they obtain approval from insurance regulatory authorities.
RGA Life Reinsurance Company of Canada, which we refer to as "RGA Canada,"
and which is our second largest operating subsidiary, is limited in its ability
to pay dividends by the Canadian Minimum Continuing Capital and Surplus
Requirements. As of December 31, 2002, the maximum amount available for
dividends from RGA Canada was $33.4 million. RGA Reinsurance Company (Barbados)
Ltd., which we refer to as "RGA Barbados," and RGA Americas Reinsurance Company,
Ltd., which we refer to as "RGA Americas," do not have material restrictions on
their ability to pay dividends out of retained earnings.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of one of our insurance subsidiaries, all creditors of that
subsidiary would be entitled to payment in full out of the assets of such
subsidiary before we, as shareholder, would be entitled to any payment. Our
subsidiaries would have to pay their direct creditors in full before our
creditors, including holders of any offered securities, could receive any
payment from the assets of such subsidiaries.
A DOWNGRADE IN THE RATINGS OF OUR INSURANCE SUBSIDIARIES OR METLIFE OR ITS
AFFILIATES COULD ADVERSELY AFFECT OUR ABILITY TO COMPETE.
Ratings are an important factor in our competitive position. Rating
organizations periodically review the financial performance and condition of
insurers, including our insurance subsidiaries. These ratings are based on an
insurance company's ability to pay its obligations and are not directed toward
the protection of investors. Rating organizations assign ratings based upon
several factors. While most of the factors considered relate to the rated
company, some of the factors relate to general economic conditions and
circumstances outside the rated company's control.
RGA Reinsurance maintains financial strength ratings from A.M. Best
Company, Inc., Moody's Investors Service, Inc. and Standard & Poor's Corporate
Ratings Services, Inc. A.M. Best Company, Inc. has assigned RGA Reinsurance and
RGA Canada financial strength ratings of "A+" (Superior). Moody's has assigned
RGA Reinsurance a financial strength rating of "A1." Standard & Poor's has
assigned RGA Reinsurance and RGA Canada financial strength ratings of "AA-". Any
downgrade in the ratings of our insurance subsidiaries could adversely affect
their ability to sell products, retain existing business, and compete for
attractive acquisition opportunities.
Securities ratings are subject to revision or withdrawal at any time by the
assigning rating organization. A security rating is not a recommendation to buy,
sell or hold securities, and each rating should be evaluated independently of
any other rating. We believe that the rating agencies consider the ratings of a
parent company when assigning a rating to a subsidiary of that company. The
ability of our subsidiaries to write reinsurance partially depends on their
financial condition and is influenced by their ratings. In addition, a downgrade
in the rating or outlook of RGA, among other factors, could adversely affect our
ability to contribute capital to our subsidiaries for the purpose of
facilitating their operations. Accordingly, we believe a ratings downgrade of
MetLife or RGA, or of its or our affiliates, could have a negative impact on our
ability to conduct business.
6
WE COULD BE FORCED TO SELL INVESTMENTS AT A LOSS TO COVER POLICYHOLDER
WITHDRAWALS, RECAPTURES OF REINSURANCE TREATIES OR OTHER EVENTS.
Some of the products offered by our insurance company customers allow
policyholders and contractholders to withdraw their funds under defined
circumstances. Our insurance subsidiaries manage their liabilities and configure
their investment portfolios so as to provide and maintain sufficient liquidity
to support anticipated withdrawal demands and contract benefits and maturities
under reinsurance treaties with these customers. While our insurance
subsidiaries own a significant amount of liquid assets, a portion of their
assets are relatively illiquid. Unanticipated withdrawal or surrender activity
could, under some circumstances, require our insurance subsidiaries to dispose
of assets on unfavorable terms, which could have an adverse effect on us.
Reinsurance agreements may provide for recapture rights on the part of our
insurance company customers. Recapture rights permit these customers to reassume
all or a portion of the risk formerly ceded to us after an agreed upon time,
usually 10 years, subject to various conditions. Recapture of business
previously ceded does not affect premiums ceded prior to the recapture, but may
result in immediate payments to our insurance company customers and a charge for
unrecoverable deferred acquisition costs. Under some circumstances, payments to
our insurance company customers could require our insurance subsidiaries to
dispose of assets on unfavorable terms.
OUR INSURANCE SUBSIDIARIES ARE HIGHLY REGULATED, AND CHANGES IN THESE
REGULATIONS COULD NEGATIVELY AFFECT OUR BUSINESS.
Our insurance subsidiaries are subject to government regulation in each of
the jurisdictions in which they are licensed or authorized to do business.
Governmental agencies have broad administrative power to regulate many aspects
of the insurance business, which may include premium rates, marketing practices,
advertising, policy forms, and capital adequacy. These agencies are concerned
primarily with the protection of policyholders rather than shareholders or
holders of debt securities. Moreover, insurance laws and regulations, among
other things, establish minimum capital requirements and limit the amount of
dividends, tax distributions, and other payments our insurance subsidiaries can
make without prior regulatory approval, and impose restrictions on the amount
and type of investments we may hold. The State of Missouri also regulates RGA as
an insurance holding company.
Recently, insurance regulators have increased their scrutiny of the
insurance regulatory framework in the United States and some state legislatures
have considered or enacted laws that alter, and in many cases increase, state
authority to regulate insurance holding companies. In light of recent
legislative developments, the NAIC and state insurance regulators have begun
re-examining existing laws and regulations, specifically focusing on insurance
company investments and solvency issues, guidelines imposing minimum capital
requirements based on business levels and asset mix, interpretations of existing
laws, the development of new laws, the implementation of nonstatutory
guidelines, and the definition of extraordinary dividends. We cannot predict the
effect that any NAIC recommendations or proposed or future legislation or rule
making in the United States or elsewhere may have on our financial condition or
operations.
IF OUR RISK MANAGEMENT OR INVESTMENT STRATEGY IS NOT SUCCESSFUL, WE COULD SUFFER
UNEXPECTED LOSSES.
Risk management and the success of our investment strategy are crucial to
the success of our business. In particular, to the extent believed necessary, we
structure our investments to match our anticipated liabilities under reinsurance
treaties. If our calculations with respect to these reinsurance liabilities are
incorrect, or if we improperly structure our investments to match such
liabilities, we could be forced to liquidate investments prior to maturity at a
significant loss.
Our investment guidelines also permit us to invest up to 5% of our
investment portfolio in below-investment grade fixed income securities. While
any investment carries some risk, the risks associated with lower-rated
securities are greater than the risks associated with investment grade
securities. The risk of loss of principal or interest through default is greater
because lower-rated securities are usually unsecured and are often subordinated
to an issuer's other obligations. Additionally, the issuers of these securities
frequently have high debt levels and are thus more sensitive to difficult
economic conditions, individual corporate develop-
7
ments and rising interest rates which could impair an issuer's capacity or
willingness to meet its financial commitment on such lower-rated securities. As
a result, the market price of these securities may be quite volatile, and the
risk of loss is greater.
The success of any investment activity is affected by general economic
conditions, which may adversely affect the markets for interest-rate-sensitive
securities and equity securities, including the level and volatility of interest
rates and the extent and timing of investor participation in such markets.
Unexpected volatility or illiquidity in the markets in which we directly or
indirectly hold positions could adversely affect us.
TAX LAW CHANGES OR A PROLONGED ECONOMIC DOWNTURN COULD REDUCE THE DEMAND FOR
SOME INSURANCE PRODUCTS, WHICH COULD ADVERSELY AFFECT OUR BUSINESS.
Under the Internal Revenue Code of 1986, income tax payable by
policyholders on investment earnings is deferred during the accumulation period
of some life insurance and annuity products. To the extent that the Internal
Revenue Code is revised to reduce the tax-deferred status of life insurance and
annuity products, or to increase the tax-deferred status of competing products,
all life insurance companies would be adversely affected with respect to their
ability to sell such products, and, depending on grandfathering provisions, by
the surrenders of existing annuity contracts and life insurance policies. In
addition, life insurance products are often used to fund estate tax obligations.
Congress has adopted legislation to reduce, and ultimately eliminate, the estate
tax. Under this legislation, our life insurance company customers will face
reduced demand for some of their life insurance products, which in turn could
negatively affect our reinsurance business. We cannot predict what future tax
initiatives may be proposed and enacted which could affect us.
In addition, a general economic downturn or a downturn in the equity and
other capital markets could adversely affect the market for many annuity and
life insurance products. Because we obtain substantially all of our revenues
through reinsurance arrangements that cover a portfolio of life insurance
products, as well as annuities, our business would be harmed if the market for
annuities or life insurance were adversely affected. In addition, the market for
annuity reinsurance products is currently not well developed, and we cannot
assure you that such market will develop in the future.
WE ARE EXPOSED TO FOREIGN CURRENCY RISK.
We have foreign currency risk on business conducted and investments in
foreign currencies to the extent that the exchange rates of the foreign
currencies are subject to adverse change over time. Approximately 33% of our
premiums, 28% of our income from continuing operations before income taxes, and
31% of our fixed maturity securities available for sale were denominated in
currencies other than the U.S. dollar as of June 30, 2003. Fluctuations in
exchange rates can negatively or positively impact premiums and earnings. We
hold fixed-maturity investments denominated in foreign currencies as a natural
hedge against liabilities based in those currencies. We generally do not hedge
the foreign currency exposure associated with our net investments in foreign
subsidiaries due to the long-term nature of these investments. We cannot predict
whether exchange rate fluctuations will significantly harm our operations or
financial results in the future.
INTEREST-RATE FLUCTUATIONS COULD NEGATIVELY AFFECT THE INCOME WE DERIVE FROM THE
DIFFERENCE BETWEEN THE INTEREST RATES WE EARN ON OUR INVESTMENTS AND INTEREST WE
PAY UNDER OUR REINSURANCE CONTRACTS.
Significant changes in interest rates expose reinsurance companies to the
risk of not earning income or experiencing losses based on the difference
between the interest rates earned on investments and the credited interest rates
paid on outstanding reinsurance contracts.
Both rising and declining interest rates can negatively affect the income
we derive from these interest rate spreads. During periods of falling interest
rates, our investment earnings will be lower because interest earnings on some
of our fixed maturity securities will likely have declined in parallel with
market interest rates. Additionally, new investments in fixed maturity
securities will likely bear lower interest rates. We may not be able to fully
offset the decline in investment earnings with lower crediting rates on our
reinsurance contracts that have cash values. During periods of rising interest
rates, we may be contractually obligated to increase the crediting rates on our
reinsurance contracts that have cash values. However, we may not have the
ability to
8
immediately acquire investments with interest rates sufficient to offset the
increased crediting rates on our reinsurance contracts. While we develop and
maintain asset/liability management programs and procedures designed to reduce
the volatility of our income when interest rates are rising or falling, we
cannot assure you that changes in interest rates will not affect our interest
rate spreads.
Changes in interest rates may also affect our business in other ways. Lower
interest rates may result in lower sales of certain insurance and investment
products of our customers, which would reduce the demand for our reinsurance of
these products.
WE OPERATE IN A HIGHLY COMPETITIVE INDUSTRY, WHICH COULD LIMIT OUR ABILITY TO
GAIN OR MAINTAIN OUR POSITION IN THE INDUSTRY.
The reinsurance industry is highly competitive, and we encounter
significant competition in all lines of business from other reinsurance
companies, as well as competition from other providers of financial services.
Our competitors vary by geographic market. We believe our primary competitors
are Employers Reinsurance Company, ING Re, Munich American Reinsurance Company,
Swiss Re Life of America, and Transamerica Occidental Life Insurance Company, a
subsidiary of Aegon, N.V. Many of our competitors have greater financial
resources than we do. Our ability to compete depends on, among other things, our
ability to maintain strong financial strength ratings from rating agencies,
pricing and other terms and conditions of reinsurance agreements, and our
reputation, service, and experience in the types of business that we underwrite.
However, competition from other reinsurers could adversely affect our
competitive position.
Our target market is large life insurers. We compete based on the strength
of our underwriting operations, insights on mortality trends based on our large
book of business, and responsive service. We believe our quick response time to
client requests for individual underwriting quotes and our underwriting
expertise are important elements to our strategy and lead to other business
opportunities with our clients. We are currently transplanting our strategy in
North America to other international locations and expect to support our North
American clients as they expand internationally. Our business will be adversely
affected if we are unable to maintain these competitive advantages or if our
international strategy is not successful.
WE DEPEND ON THE PERFORMANCE OF OTHERS, AND THEIR FAILURE TO PERFORM IN A
SATISFACTORY MANNER WOULD NEGATIVELY AFFECT US.
In the normal course of business, we seek to limit our exposure to losses
from our reinsurance contracts by ceding a portion of the reinsurance to other
insurance enterprises or reinsurers. We cannot assure you that these insurance
enterprises or reinsurers will be able to fulfill their obligations to us. We
are also subject to the risk that our clients will be unable to fulfill their
obligations to us under our reinsurance agreements with them.
We use the services of third-party investment managers to manage a majority
of our investment portfolio. We rely on these investment managers to provide
investment advice and execute investment transactions that are within our
investment policy guidelines. Poor performance on the part of our outside
investment managers could have an adverse effect on our financial performance.
For some reinsurance agreements, the ceding company withholds and legally
owns and manages assets equal to the net statutory reserves, and we reflect
these assets as funds withheld at interest on our balance sheet. In the event
that a ceding company were to become insolvent, we would need to assert a claim
on the assets supporting our reserve liabilities. We attempt to mitigate our
risk of loss by offsetting amounts for claims or allowances that we owe the
ceding company with amounts that the ceding company owes to us. We are subject
to the investment performance on the withheld assets, although we do not
directly control them. To mitigate some of this risk, we help to set, and
monitor compliance with, the investment guidelines followed by these ceding
companies. However, to the extent that such investment guidelines are not
appropriate, or are not adhered to by the ceding companies, our risk of loss
could increase, which could materially adversely affect our financial condition
and results of operations.
9
As with all financial services companies, our ability to conduct business
depends on consumer confidence in the industry and our financial strength.
Actions of competitors, and financial difficulties of other companies in the
industry, could undermine consumer confidence and harm our reputation.
INADEQUATE RISK ANALYSIS AND UNDERWRITING MAY HAVE AN ADVERSE EFFECT ON OUR
FINANCIAL RESULTS.
We have developed risk analysis and underwriting guidelines, policies, and
procedures with the objective of controlling the quality of the business as well
as the pricing of the risk we are assuming. Among other things, these processes
rely heavily on our own underwriting and information provided to us from, and
underwriting by, our insurance company customers, our analysis of mortality
trends and the rate at which policies for which we are at risk lapse, and our
understanding of medical impairments and their impact on mortality. To the
extent these processes are inadequate or are based on inadequate information,
the premiums we receive for the risks we assume may not be sufficient to cover
our claims.
THE THREAT OF TERRORIST ATTACKS AND RELATED EVENTS MAY ADVERSELY AFFECT OUR
BUSINESS AND RESULTS OF OPERATIONS.
The terrorist attacks on the United States and the threat of future attacks
may have a continuing negative impact on our business. We cannot assure you that
there will not be further terrorist attacks against the United States or United
States businesses. Political and economic instability in some regions of the
world may also result and could negatively impact our business. RGA believes its
reinsurance programs, including its catastrophe coverage, are sufficient to
reasonably limit its net losses for individual life claims relating to potential
future terrorist attacks. However, the consequences of further terrorist attacks
and armed conflicts are unpredictable, and we may not be able to foresee events
that could have an adverse effect on our business.
OUR OBLIGATIONS TO PAY CLAIMS, INCLUDING SETTLEMENTS OR AWARDS, ON CLOSED OR
DISCONTINUED LINES OF BUSINESS MAY EXCEED THE RESERVES WE HAVE ESTABLISHED TO
COVER SUCH CLAIMS AND MAY REQUIRE US TO ESTABLISH ADDITIONAL RESERVES, WHICH
WOULD REDUCE OUR NET INCOME.
In 1994, we entered the reinsurance market for the privatized pension
program in Argentina, which we refer to as the "AFJP business." Although we
ceased renewal of AFJP business treaties and no longer write AFJP business, we
must continue to pay claims that develop during the run-off of the remaining
treaties. Benefits paid to claimants under the AFJP business are indexed to the
returns of the underlying pension funds. Because of higher than expected claim
levels, in the fourth quarter of 2001, we established $35 million in additional
reserves for the AFJP business. If the amount of claims resulting from this
closed line of business exceeds our current estimates, we may establish
additional reserves.
As of December 31, 1998, we formally reported our accident and health
division as a discontinued operation. The accident and health operation was
placed into run-off, and all treaties were terminated at the earliest possible
date. The nature of the underlying risks is such that the claims may take years
to reach the reinsurers involved. Accordingly, we expect to pay claims out of
existing reserves over a number of years as the level of business diminishes. We
are a party to a number of disputes relating to the accident and health
operation, some of which are currently in arbitration or may be subject to
arbitration in the future. We have established reserves for some of these
treaties based upon our estimates of the expected claims, including settlement
or arbitration outcomes. In a number of cases, however, we are unable to
determine our potential liability, if any, because of insufficient claims
information. If the amount of claims, including awards or settlements, resulting
from this discontinued line of business exceeds our current reserves, we may
establish additional reserves.
10
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This document contains or incorporates by reference a number of
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 relating to, among others:
- projections of our earnings, revenues, income or loss, or capital
expenditures;
- our plans for future operations and financing needs or plans; and
- assumptions relating to the foregoing.
The words "intend," "expect," "project," "estimate," "predict,"
"anticipate," "should," "believe" and other similar expressions also are
intended to identify forward-looking statements.
These forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified. Future events
and actual results, performance and achievements could differ materially from
those set forth in, contemplated by or underlying the forward-looking
statements.
Important factors that could cause actual results to differ materially from
estimates or forecasts contained in the forward-looking statements include,
among others:
- adverse changes in mortality, morbidity and claims experience;
- risks related to our being controlled by MetLife;
- the effect of our status as a holding company and regulatory restrictions
on our ability to pay principal of and interest on our debt obligations;
- changes in the financial strength and credit ratings of RGA and our
subsidiaries or those of MetLife or its subsidiaries, and the effect of
such changes on our future results of operations and financial condition;
- market or economic conditions that adversely affect our ability to make
timely sales of investment securities in response to policyholder
withdrawals, recaptures of reinsurance treaties or other events;
- regulatory action that may be taken by State Departments of Insurance
with respect to MetLife or us or its or our subsidiaries;
- risks inherent in our risk management and investment strategy, including
changes in investment portfolio yields or values due to interest rate or
credit quality changes;
- the effect of changes in tax laws or a prolonged economic downturn in the
demand for our insurance products;
- fluctuations in U.S. or foreign currency exchange rates, interest rates
or securities and real estate markets;
- competitive factors and competitors' responses to our initiatives;
- our dependence on third parties, including those insurance companies and
reinsurers to which we cede some reinsurance, third-party investment
managers and others;
- inadequate risk analysis and underwriting;
- the adequacy of resources relating to settlements, awards and
discontinued lines of business;
- general economic conditions affecting the demand for insurance and
reinsurance in our current and planned markets;
- the stability of governments and economies in the markets in which we
operate;
- adverse litigation or arbitration results;
- the success of our clients;
11
- successful execution of our entry into new markets;
- successful development and introduction of new product and distribution
opportunities;
- changes in laws, regulations and accounting standards applicable to us,
our subsidiaries or our business; and
- other risks and uncertainties described under the caption "Risk Factors"
in this prospectus and in our other filings with the Securities and
Exchange Commission.
If one or more of these risks or uncertainties materialize, or if
underlying assumptions prove incorrect, actual outcomes may vary materially from
those indicated.
You should not place undue reliance on those statements, which speak only
as of the date on which they are made. We may not update these forward-looking
statements, even though our situation may change in the future, unless we are
obligated under the federal securities laws to update and disclose material
developments related to previously disclosed information. We qualify all of our
forward-looking statements by these cautionary statements.
INFORMATION ABOUT RGA
We are an insurance holding company that was formed on December 31, 1992.
Through our operating subsidiaries, we are primarily engaged in life reinsurance
in North America and select international locations. In addition, we provide
reinsurance of non-traditional business including asset-intensive products and
financial reinsurance. Through a predecessor, we have been engaged in the
business of life reinsurance since 1973. As of June 30, 2003, we had
approximately $10.3 billion in consolidated assets.
Reinsurance is an arrangement under which an insurance company, the
"reinsurer," agrees to indemnify another insurance company, the "ceding
company," for all or a portion of the insurance risks underwritten by the ceding
company. Reinsurance is designed to:
- reduce the net liability on individual risks, thereby enabling the ceding
company to increase the volume of business it can underwrite, as well as
increase the maximum risk it can underwrite on a single life or risk;
- stabilize operating result by leveling fluctuations in the ceding
company's loss experience;
- assist the ceding company to meet applicable regulatory requirements; and
- enhance the ceding company's financial strength and surplus position.
We are a holding company, the principal assets of which consist of the
common stock of our principal operating subsidiaries, RGA Reinsurance and RGA
Canada, as well as investments in several other subsidiaries.
We have four main operational segments segregated primarily by geographic
region: United States, Canada, Other International, and Corporate and Other. Our
United States operations provide traditional life reinsurance and
asset-intensive and financial reinsurance to domestic clients. Asset-intensive
products include reinsurance of corporate-owned life insurance and reinsurance
of annuities. Our Canada operations provide insurers with traditional
reinsurance as well as assistance with capital management activity. Other
International primarily consists of reinsurance business from Asia Pacific
(including Australia), Europe and South Africa.
On January 6, 2000, Metropolitan Life Insurance Company acquired 100% of
GenAmerica Financial Corporation (our predecessor parent), including its
beneficial ownership of RGA shares (which was approximately 48% at December 31,
1999). This acquisition, together with a direct investment in RGA, made MetLife
our majority shareholder, with beneficial ownership of approximately 58.7% of
all outstanding shares as of June 30, 2003.
12
Our executive office is located at 1370 Timberlake Manor Parkway,
Chesterfield, Missouri 63017-6039, and its telephone number is (636) 736-7000.
In this prospectus, "we," "us," "our," the "Company" and "RGA" refer to
Reinsurance Group of America, Incorporated.
This prospectus provides you with a general description of the securities
we and the RGA trusts may offer. Each time we or either of the RGA trusts sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. We will file each prospectus
supplement with the SEC. The prospectus supplement may also add, update or
supplement information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information" beginning on
page 2.
INFORMATION ABOUT THE RGA TRUSTS
Each of the RGA trusts is a statutory trust formed under Delaware law. Each
RGA trust exists for the exclusive purposes of:
- issuing and selling its preferred securities and common securities;
- using the proceeds from the sale of its preferred securities and common
securities to acquire RGA's junior subordinated debt securities; and
- engaging in only those other activities that are related to those
purposes.
All of the common securities of each trust will be directly or indirectly
owned by RGA. The common securities will rank equally, and payments will be made
proportionally, with the preferred securities. However, if an event of default
under the amended and restated trust agreement of the respective RGA trust has
occurred and is continuing, the cash distributions and liquidation, redemption
and other amounts payable on the common securities will be subordinated to the
preferred securities in right of payment. We will directly or indirectly acquire
common securities in an amount equal to at least 3% of the total capital of each
RGA trust. The preferred securities will represent the remaining 97% of such
trusts' capital.
RGA will guarantee the preferred securities of each RGA trust as described
later in this prospectus.
Unless otherwise specified in the applicable prospectus supplement, each
RGA trust has a term of up to 55 years but may terminate earlier, as provided in
its amended and restated trust agreement. Each RGA trust's business and affairs
will be conducted by the trustees appointed by us. According to the amended and
restated trust agreement of each RGA trust, as the holder of all of the common
securities of an RGA trust, we can increase or decrease the number of trustees
of each trust, subject to the requirement under Delaware law that there be a
trustee in the State of Delaware and to the provisions of the Trust Indenture
Act of 1939. The amended and restated trust agreement will set forth the duties
and obligations of the trustees. A majority of the trustees of each RGA trust
will be employees or officers of or persons who are affiliated with RGA, whom we
refer to as "administrative trustees."
One trustee of each RGA trust will be an institution, which we refer to as
the "property trustee," that is not affiliated with RGA and has a minimum amount
of combined capital and surplus of not less than $50,000,000, which will act as
property trustee and as indenture trustee for the purposes of compliance with
the provisions of the Trust Indenture Act of 1939, under the terms of the
applicable prospectus supplement. Unless otherwise indicated in the applicable
prospectus supplement, the property trustee will maintain exclusive control of a
segregated, non-interest bearing "payment account" established with The Bank of
New York to hold all payments made on the junior subordinated debt securities
for the benefit of the holders of the trust securities of each RGA trust. In
addition, unless the property trustee maintains a principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
one trustee of each RGA trust will be an institution having a principal place of
business in, or a natural person resident of, the State of Delaware, which we
refer to as the "Delaware trustee." As the direct or indirect holder of all of
the common securities, RGA will be entitled to appoint, remove or replace any
of, or increase or reduce the
13
number of, the trustees of each RGA trust, except that if an event of default
under the junior subordinated indenture has occurred and is continuing, only the
holders of preferred securities may remove the Delaware trustee or the property
trustee. RGA will pay all fees and expenses related to the RGA trust and the
offering of the preferred securities and the common securities.
Unless otherwise specified in the applicable prospectus supplement, the
property trustee for each RGA trust will be The Bank of New York. Unless
otherwise specified in the applicable prospectus supplement, the Delaware
trustee for each RGA trust will be The Bank of New York (Delaware), an affiliate
of The Bank of New York, and its address in the state of Delaware is White Clay
Center, Route 273, Newark, Delaware 19771. The principal place of business of
each RGA trust is c/o Reinsurance Group of America, Incorporated, 1370
Timberlake Manor Parkway, Chesterfield, Missouri 63017-6039, telephone (636)
736-7000.
The RGA trusts will not have separate financial statements. The statements
would not be material to holders of the preferred securities because the trusts
will not have any independent operations. Each of the trusts exists solely for
the reasons provided in the amended and restated trust agreement and summarized
above. Unless otherwise provided in the applicable prospectus supplement, RGA
will pay all fees and expenses related to each RGA trust and the offering of its
preferred securities, including the fees and expenses of the trustee.
USE OF PROCEEDS
Except as otherwise described in a prospectus supplement, the proceeds from
the sale by any RGA trust of any preferred securities, together with any capital
contributed in respect of common securities, will be loaned to RGA in exchange
for RGA's junior subordinated debt securities. Unless otherwise stated in the
prospectus supplement, we will use borrowings from the RGA trusts, and the net
proceeds from the sale of any other securities offered by RGA, for general
corporate purposes. Such general corporate purposes may include, but are not
limited to, repayments of our indebtedness or the indebtedness of our
subsidiaries. Pending such use, the proceeds may be invested temporarily in
short-term, interest-bearing, investment-grade securities or similar assets. The
prospectus supplement relating to an offering will contain a more detailed
description of the use of proceeds of any specific offering of securities.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS TO EARNINGS
The following table sets forth RGA's ratios of earnings to fixed charges
and earnings to fixed charges, including interest credited under reinsurance
contracts, for the periods indicated. For purposes of computing the consolidated
ratio of earnings to fixed charges, earnings consist of net earnings from
continuing operations adjusted for the provision for income taxes, minority
interest and fixed charges. Fixed charges consist of interest and discount on
all indebtedness, distribution requirements of wholly-owned subsidiary trust
preferred securities and one-third of annual rentals, which we believe is a
reasonable approximation of the interest factor of such rentals. We have not
paid a preference security dividend for any of the periods presented, and
accordingly have not separately shown the ratio of combined fixed charges and
preference dividends to earnings for these periods.
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED
------------------------------------ JUNE 30,
1998 1999 2000 2001 2002 2003
---- ---- ---- ---- ---- ----------
Ratio of earnings to fixed charges............ 15.2 8.5 9.9 4.3 6.1 7.1
Ratio of earnings to fixed charges including
interest credited under reinsurance
contracts................................... 1.8 1.6 2.4 1.5 2.2 2.1
14
DESCRIPTION OF DEBT SECURITIES OF RGA
The following description of the terms of the debt securities sets forth
the material terms and provisions of the debt securities to which any prospectus
supplement may relate. The particular terms of the debt securities offered by
any prospectus supplement and the extent, if any, to which such general
provisions may apply to the debt securities so offered will be described in the
prospectus supplement relating to such debt securities. The debt securities will
be either our senior debt securities or subordinated debt securities, or our
junior subordinated debt securities issued in connection with the issuance by an
RGA trust of its trust preferred securities.
THE INDENTURES
The senior debt securities will be issued in one or more series under a
Senior Indenture, dated as of December 19, 2001, between us and The Bank of New
York, as trustee. The subordinated debt securities will be issued in one or more
series under a subordinated indenture, to be entered into by us with a financial
institution as trustee. The junior subordinated debt securities will be issued
in one or more series under a Junior Subordinated Indenture, dated as of
December 18, 2001, between us and The Bank of New York, as trustee. The
statements herein relating to the debt securities and the indentures are
summaries and are subject to the detailed provisions of the applicable
indenture. Each of the indentures will be subject to and governed by the Trust
Indenture Act of 1939. The description of the indentures set forth below assumes
that we have entered into the indentures. We will execute the senior indenture
or the subordinated indenture, as applicable, when and if we issue senior or
subordinated debt securities. We will execute the junior subordinated indenture
when and if we issue junior subordinated debt securities in connection with the
issuance by an RGA trust of its preferred securities. See "Description of
Preferred Securities of the RGA Trusts" below. The descriptions below do not
restate the indentures and do not contain all the information you may find
useful. We urge you to read the indentures because they, and not the summaries,
define your rights as a holder of our debt securities. If you would like to read
the indentures, they are on file with the SEC, as described under "Where You Can
Find More Information" beginning on page 2. Whenever we refer to particular
sections or defined terms in an indenture, those sections and definitions are
incorporated by reference.
GENERAL
The indentures do not limit the aggregate amount of debt securities which
we may issue. We may issue debt securities under the indentures up to the
aggregate principal amount authorized by our board of directors from time to
time. Except as may be described in a prospectus supplement, the indentures will
not limit the amount of other secured or unsecured debt that we may incur or
issue.
The debt securities will be our unsecured general obligations. The senior
debt securities will rank with all our other unsecured and unsubordinated
obligations. Unless otherwise specified in the applicable prospectus supplement,
the subordinated debt securities will be subordinated and junior in right of
payment to the extent and in the manner set forth in the subordinated indenture
to all our present and future senior indebtedness. Unless otherwise specified in
the applicable prospectus supplement, the junior subordinated debt securities
that we may issue to one of the RGA trusts will be subordinated and junior in
right of payment to the extent and in the manner set forth in the junior
subordinated indenture to all our present and future indebtedness, including any
senior and subordinated debt securities issued under the senior or subordinated
indenture. See "-- Subordination under the Subordinated Indenture and the Junior
Subordinated Indenture." The indentures will provide that the debt securities
may be issued from time to time in one or more series. We may authorize the
issuance and provide for the terms of a series of debt securities pursuant to a
supplemental indenture.
We are a holding company. As a result, we may rely primarily on dividends
or other payments from our operating subsidiaries to pay principal and interest
on our outstanding debt obligations, and to make dividend distributions on our
capital stock. The principal source of funds for these operating subsidiaries
comes from their current operations. We can also utilize investment securities
maintained in our portfolio for these payments.
15
Applicable insurance regulatory and other legal restrictions limit the
amount of dividends and other payments our subsidiaries can make to us. Our
subsidiaries have no obligation to guarantee or otherwise pay amounts due under
the debt securities. Therefore, the debt securities will be effectively
subordinated to all indebtedness and other liabilities and commitments of our
subsidiaries, including claims under reinsurance contracts, debt obligations and
other liabilities incurred in the ordinary course of business. As of June 30,
2003, we had a carrying value of approximately $339.4 million of senior
unsecured indebtedness that would rank equally with any senior debt securities,
and our subsidiaries had approximately $8.5 billion of outstanding liabilities,
including $37.6 million of outstanding indebtedness, that effectively would be
senior to our senior debt securities. At this time, we also had a carrying value
of approximately $158.2 million of junior subordinated indebtedness that we had
issued to RGA Capital Trust I in connection with its issuance of our Trust
PIERS(R) units in December 2001, which would rank equally with any other junior
subordinated debt that we might issue, but which is subordinated and junior in
right of payment to our senior and subordinated debt securities. We will
disclose material changes to these amounts in any prospectus supplement relating
to an offering of our debt securities. In the event of a default on any debt
securities, the holders of the debt securities will have no right to proceed
against the assets of any insurance subsidiary. If the subsidiary were to be
liquidated, the liquidation would be conducted under the laws of the applicable
jurisdiction. Our right to receive distributions of assets in any liquidation of
a subsidiary would be subordinated to the claims of the subsidiary's creditors,
except to the extent any claims of ours as a creditor would be recognized. Any
recognized claims of ours would be subordinated to any prior security interest
held by any other creditors of the subsidiary and obligations of the subsidiary
that are senior to those owing to us.
The applicable prospectus supplement relating to the particular series of
debt securities will describe specific terms of the debt securities offered
thereby, including, where applicable:
(1) the specific designation of such debt securities;
(2) any limit upon the aggregate principal amount of such debt
securities;
(3) the date or dates on which the principal of and premium, if any,
on such debt securities will mature or the method of determining such date
or dates;
(4) the rate or rates, which may be fixed, variable or zero, at which
such debt securities will bear interest, if any, or the method of
calculating such rate or rates;
(5) the date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined;
(6) the date or dates on which interest, if any, will be payable and
the record date or dates therefor and whether we may elect to extend or
defer such interest payment dates;
(7) the place or places where principal of, premium, if any, and
interest, if any, on such debt securities may be redeemed, in whole or in
part, at our option;
(8) our obligation, if any, to redeem or purchase such debt securities
pursuant to any sinking fund or analogous provisions or upon the happening
of a specified event and the period or periods within which, the price or
prices at which and the other terms and conditions upon which, such debt
securities will be redeemed or purchased, in whole or in part, pursuant to
such obligations;
(9) the denominations in which such debt securities are authorized to
be issued;
(10) the currency or currency unit for which such debt securities may
be purchased or in which debt securities may be denominated or the currency
or currencies, including currency unit or units, in which principal of,
premium, if any, and interest, if any, on such debt securities will be
payable and whether we or the holders of any such debt securities may elect
to receive payments in respect of such debt securities in a currency or
currency unit other than that in which such debt securities are stated to
be payable;
(11) if the amount of payments of principal of and premium, if any, or
interest, if any, on such debt securities may be determined with reference
to an index based on a currency or currencies other than that
16
in which such debt securities are stated to be payable, the manner in which
such amount shall be determined;
(12) if the amount of payments of principal of and premium, if any, or
interest, if any, on such debt securities may be determined with reference
to changes in the prices of particular securities or commodities or
otherwise by application of a formula, the manner in which such amount
shall be determined;
(13) if other than the entire principal amount, the portion of the
principal amount of such debt securities which will be payable upon
declaration of the acceleration of the maturity of such securities or the
method by which such portion shall be determined;
(14) the person to whom any interest on any such debt security shall
be payable if other than the person in whose name such debt security is
registered on the applicable record date;
(15) any addition to, or modification or deletion of, any term of
subordination, event of default or covenant of RGA specified in the
indenture with respect to such debt securities;
(16) the application, if any, of such means of defeasance as may be
specified for such debt securities;
(17) the terms, if any, upon which the holders may convert or exchange
such debt securities into or for our common or preferred stock or other
securities or property;
(18) in the case of the subordinated and junior subordinated debt
securities, provisions relating to any modification of the subordination
provisions described elsewhere in this prospectus; and
(19) whether the provisions relating to extension or deferral of
interest payment dates described in this prospectus will apply to the debt
securities;
(20) any other special terms pertaining to such debt securities.
(Section 3.1 of each indenture).
Unless otherwise specified in the applicable prospectus supplement, the
debt securities will not be listed on any securities exchange.
None of our shareholders, officers or directors, past, present or future,
will have any personal liability in respect of our obligations under the
indenture or the debt securities on account of that status. (Section 1.14 of
each indenture).
FORM AND DENOMINATIONS
Unless otherwise specified in the applicable prospectus supplement, debt
securities will be issued only in fully registered form, without coupons, and
will be denominated in U.S. dollars issued only in denominations of U.S. $1,000
and any integral multiple thereof. (Section 3.2 of each indenture).
GLOBAL DEBT SECURITIES
Unless otherwise specified in a prospectus supplement for a particular
series of debt securities, each series of debt securities will be issued in
whole or in part in global form that will be deposited with, or on behalf of, a
depositary identified in the prospectus supplement relating to that series.
Global securities will be registered in the name of the depositary, which will
be the sole direct holder of the global securities. Any person wishing to own a
debt security must do so indirectly through an account with a broker, bank or
other financial institution that, in turn, has an account with the depositary.
Special Investor Considerations for Global Securities. Our obligations
with respect to the debt securities, as well as the obligations of each trustee,
run only to persons who are registered holders of debt securities. For example,
once we make payment to the registered holder, we have no further responsibility
for that payment even if the recipient is legally required to pass the payment
along to an individual investor but fails to do so. As an indirect holder, an
investor's rights relating to a global security will be governed by the
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account rules of the investor's financial institution and of the depositary, as
well as general laws relating to transfers of debt securities.
An investor should be aware that when debt securities are issued in the
form of global securities:
- the investor cannot have debt securities registered in his or her own
name;
- the investor cannot receive physical certificates for his or her debt
securities;
- the investor must look to his or her bank or brokerage firm for payments
on the debt securities and protection of his or her legal rights relating
to the debt securities;
- the investor may not be able to sell interests in the debt securities to
some insurance or other institutions that are required by law to hold the
physical certificates of debt that they own;
- the depositary's policies will govern payments, transfers, exchanges and
other matters relating to the investor's interest in the global security;
and
- the depositary will usually require that interests in a global security
be purchased or sold within its system using same-day funds.
Neither we nor the trustees have any responsibility for any aspect of the
depositary's actions or for its records of ownership interests in the global
security, and neither we nor the trustees supervise the depositary in any way.
Special Situations When the Global Security Will Be Terminated. In a few
special situations described below, the global security will terminate, and
interests in the global security will be exchanged for physical certificates
representing debt securities. After that exchange, the investor may choose
whether to hold debt securities directly or indirectly through an account at the
investor's bank or brokerage firm. In that event, investors must consult their
banks or brokers to find out how to have their interests in debt securities
transferred to their own names so that they may become direct holders.
The special situations where a global security is terminated are:
- when the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary, unless a replacement is named;
- when an event of default on the debt securities has occurred and has not
been cured; or
- when and if we decide to terminate a global security. (Section 3.4 of
each indenture).
A prospectus supplement may list situations for terminating a global
security that would apply only to a particular series of debt securities. When a
global security terminates, the depositary, and not us or one of the trustees,
is responsible for deciding the names of the institutions that will be the
initial direct holders.
ORIGINAL ISSUE DISCOUNT SECURITIES
Debt securities may be sold at a substantial discount below their stated
principal amount and may bear no interest or interest at a rate which at the
time of issuance is below market rates. Important federal income tax
consequences and special considerations applicable to any such debt securities
will be described in the applicable prospectus supplement.
INDEXED SECURITIES
If the amount of payments of principal of, and premium, if any, or any
interest on, debt securities of any series is determined with reference to any
type of index or formula or changes in prices of particular securities or
commodities, the federal income tax consequences, specific terms and other
information with respect to such debt securities and such index or formula and
securities or commodities will be described in the applicable prospectus
supplement.
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FOREIGN CURRENCIES
If the principal of, and premium, if any, or any interest on, debt
securities of any series are payable in a foreign or composite currency, the
restrictions, elections, federal income tax consequences, specific terms and
other information with respect to such debt securities and such currency will be
described in the applicable prospectus supplement.
OPTIONAL REDEMPTION, PREPAYMENT OR CONVERSION IN CERTAIN EVENTS
The prospectus supplement relating to a particular series of debt
securities which provides for the optional redemption, prepayment or conversion
of such debt securities on the occurrence of certain events, such as a change of
control of RGA, will provide:
(1) a discussion of the effects that such provisions may have in
deterring certain mergers, tender offers or other takeover attempts, as
well as any possible adverse effect on the market price of RGA's securities
or the ability to obtain additional financing in the future;
(2) a statement that RGA will comply with any applicable provisions of
the requirements of Rule 14e-1 under the Securities Exchange Act of 1934
and any other applicable securities laws in connection with any optional
redemption, prepayment or conversion provisions and any related offers by
RGA, including, if such debt securities are convertible, Rule 13e-4;
(3) a disclosure as to whether the securities will be subject to any
sinking fund or similar provision, and a description of any such provision;
(4) a disclosure of any cross-defaults in other indebtedness which may
result as a consequence of the occurrence of certain events so that the
payments on such debt securities would be effectively subordinated;
(5) a disclosure of the effect of any failure to repurchase under the
applicable indenture, including in the event of a change of control of RGA;
(6) a disclosure of any risk that sufficient funds may not be
available at the time of any event resulting in a repurchase obligation;
and
(7) a discussion of any definition of "change of control" contained in
the applicable indenture.
PAYMENT
Unless otherwise indicated in the applicable prospectus supplement,
payments in respect of the debt securities will be made in the designated
currency at the office or agency of RGA maintained for that purpose as RGA may
designate from time to time, except that, at the option of RGA, interest
payments, if any, on debt securities in registered form may be made by checks
mailed to the holders of debt securities entitled thereto at their registered
addresses. (Section 3.7 of each indenture).
PAYMENT OF INTEREST WITH RESPECT TO REGISTERED DEBT SECURITIES
Unless otherwise indicated in an applicable prospectus supplement, payment
of any installment of interest on debt securities in registered form will be
made to the person in whose name such debt security is registered at the close
of business on the regular record date for such interest. (Section 3.7 of each
indenture).
TRANSFER AND EXCHANGE
Unless otherwise indicated in the applicable prospectus supplement, debt
securities in registered form will be transferable or exchangeable at the agency
of RGA maintained for such purpose as designated by RGA from time to time. Debt
securities may be transferred or exchanged without service charge, other than
any tax or other governmental charge imposed in connection with such transfer or
exchange. (Section 3.5 of each indenture).
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CONSOLIDATION, MERGER, CONVEYANCE, SALE OF ASSETS AND OTHER TRANSFERS
We may not consolidate with or merge with or into or wind up into, whether
or not we are the surviving corporation, or sell, assign, convey, transfer or
lease our properties and assets substantially as an entirety to any person,
unless:
- the surviving corporation or other person is organized and existing under
the laws of the United States or one of the 50 states, any U.S. territory
or the District of Columbia, and assumes the obligation to pay the
principal of, and premium, if any, and interest on all the debt
securities and coupons, if any, and to perform or observe all covenants
of each indenture; and
- immediately after the transaction, there is no event of default under
each indenture. (Section 10.1 of each indenture).
Upon the consolidation, merger or sale, the successor corporation formed by
the consolidation, or into which we are merged or to which the sale is made,
will succeed to, and be substituted for us under each indenture. (Section 10.2
of each indenture).
Unless a prospectus supplement relating to a particular series of debt
securities provides otherwise, the indenture and the terms of the debt
securities will not contain any covenants designed to afford holders of any debt
securities protection in a highly leveraged or other transaction involving us,
whether or not resulting in a change of control, which may adversely affect
holders of the debt securities.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
If indicated in the applicable prospectus supplement, we will have the
right, as long as no event of default under the applicable series of debt
securities has occurred and is continuing, at any time and from time to time
during the term of the series of debt securities to defer the payment of
interest on one or more series of debt securities for the number of consecutive
interest payment periods specified in the applicable prospectus supplement,
subject to the terms, conditions and covenants, if any, specified in the
prospectus supplement, provided that no extension period may extend beyond the
stated maturity of the debt securities. Material United States federal income
tax consequences and special considerations applicable to these debt securities
will be described in the applicable prospectus supplement. Unless otherwise
indicated in the applicable prospectus supplement, at the end of the extension
period, we will pay all interest then accrued and unpaid together with interest
on accrued and unpaid interest compounded semiannually at the rate specified for
the debt securities to the extent permitted by applicable law. However, unless
otherwise indicated in the applicable prospectus supplement, during the
extension period neither we nor any of our subsidiaries may:
- declare or pay dividends on, make distributions regarding, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of
our capital stock, other than:
(1) purchases of our capital stock in connection with any employee or
agent benefit plans or the satisfaction of our obligations under any
contract or security outstanding on the date of the event requiring us to
purchase capital stock,
(2) in connection with the reclassifications of any class or series of
our capital stock, or the exchange or conversion of one class or series of
our capital stock for or into another class or series of our capital stock,
(3) the purchase of fractional interests in shares of our capital
stock in connection with the conversion or exchange provisions of that
capital stock or the security being converted or exchanged,
(4) dividends or distributions in our capital stock, or rights to
acquire capital stock, or repurchases or redemptions of capital stock
solely from the issuance or exchange of capital stock, or
(5) any non-cash dividends declared in connection with the
implementation of a shareholder rights plan by us;
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- make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by us that rank equally
with or junior to the debt securities;
- make any guarantee payments regarding the foregoing, other than payments
under our guarantee of the preferred securities of any RGA trust; or
- redeem, purchase or acquire less than all of the junior subordinated debt
securities or any preferred securities of an RGA trust.
Prior to the termination of any extension period, as long as no event of
default under the applicable indenture has occurred and is continuing, we may
further defer payments of interest, subject to the above limitations set forth
in this section, by extending the interest payment period; provided, however,
that, the extension period, including all previous and further extensions, may
not extend beyond the maturity of the debt securities.
Upon the termination of any extension period and the payment of all amounts
then due, we may commence a new extension period, subject to the terms set forth
in this section. No interest during an extension period, except at the end of
the extension period, will be due and payable, but we may prepay at any time all
or any portion of the interest accrued during an extension period. We do not
currently intend to exercise our right to defer payments of interest by
extending the interest payment period on the debt securities. In the case of our
junior subordinated debt securities, if the property trustee is the sole holder
of such debt securities, we will give the administrative trustees and the
property trustee notice of our selection of an extension period two business
days before the earlier of (1) the next succeeding date on which distributions
on the preferred securities are payable or (2) the date the administrative
trustees are required to give notice to the New York Stock Exchange, or other
applicable self-regulatory organization, or to holders of the preferred
securities of the record or payment date of the distribution, but in any event,
at least one business day before such record date. The administrative trustees
will give notice of our selection of the extension period to the holders of the
preferred securities. If the property trustee is not the sole holder of such
debt securities, or in the case of the senior and subordinated debt securities,
we will give the holders of these debt securities notice of our selection of an
extension period at least two business days before the earlier of (1) the next
succeeding interest payment date or (2) the date upon which we are required to
give notice to the New York Stock Exchange, or other applicable self-regulatory
organization, or to holders of such debt securities of the record or payment
date of the related interest payment. (Article XVII of the senior indenture;
Article XVIII of the subordinated and junior subordinated indentures).
MODIFICATION OR AMENDMENT OF THE INDENTURES
Supplemental Indentures Without Consent of Holders. Without the consent of
any holders, we and the trustee may enter into one or supplemental indentures
for certain purposes, including:
(1) to evidence the succession of another corporation to our rights
and the assumption by such successor of our covenants contained in each
indenture;
(2) to add to our covenants for the benefit of all or any series of
debt securities, or to surrender any of our rights or powers;
(3) to add any additional events of default;
(4) to add or change any provisions to permit or facilitate the
issuance of debt securities of any series in uncertificated or bearer form;
(5) to change or eliminate any provisions, as long as any such change
or elimination is effective only when there are no outstanding debt
securities of any series created before the execution of such supplemental
indenture which is entitled to the benefit of the provisions being changed
or eliminated;
(6) to provide security for or guarantee of the debt securities;
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(7) to supplement any of the provisions to permit or facilitate the
defeasance and discharge of any series of debt securities in accordance
with such indenture as long as such action does not adversely affect the
interests of the holders of the debt securities in any material respect;
(8) to establish the form or terms of debt securities in accordance
with each indenture;
(9) to provide for the acceptance of the appointment of a successor
trustee for any series of debt securities or to provide for or facilitate
the administration of the trusts under the indenture by more than one
trustee;
(10) to cure any ambiguity, to correct or supplement any provision of
any indenture which may be defective or inconsistent with any other
provision, to eliminate any conflict with the Trust Indenture Act or to
make any other provisions with respect to matters or questions arising
under such indenture which are not inconsistent with any provision of the
indenture, as long as the additional provisions do not adversely affect the
interests of the holders in any material respect; or
(11) in the case of the subordinated and the junior subordinated
indentures, to modify the subordination provisions thereof, except in a
manner which would be adverse to the holders of subordinated or junior
subordinated debt securities of any series then outstanding. (Section 11.1
of each such indenture).
Supplemental Indentures With Consent of Holders. If we receive the consent
of the holders of at least a majority in principal amount of the outstanding
debt securities of each series affected, we may enter into supplemental
indentures with the trustee for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of each indenture or
of modifying in any manner the rights of the holders under the indenture of such
debt securities and coupons, if any. As long as any of the preferred securities
of an RGA trust remain outstanding, no modification of the related junior
subordinated indenture may be made that requires the consent of the holders of
the related junior subordinated debt securities, no termination of the related
junior subordinated indenture may occur, and no waiver of any event of default
under the related junior subordinated indenture may be effective, without the
prior consent of the holders of a majority of the aggregate liquidation amount
of the preferred securities of such RGA trust.
However, unless we receive the consent of all of the affected holders, we
may not enter into supplemental indentures that would, with respect to the debt
securities of such holders:
(1) conflict with the required provisions of the Trust Indenture Act;
(2) except as described in any prospectus supplement:
- change the stated maturity of the principal of, or installment of
interest, if any, on, any debt security,
- reduce the principal amount thereof or the interest thereon or any
premium payable upon redemption thereof; provided, however, that a
requirement to offer to repurchase debt securities will not be
deemed a redemption for this purpose,
- change the stated maturity of or reduce the amount of any payment
to be made with respect to any coupon,
- change the currency or currencies in which the principal of, and
premium, if any, or interest on such debt security is denominated
or payable,
- reduce the amount of the principal of a discount security that
would be due and payable upon a declaration of acceleration of the
maturity thereof or reduce the amount of, or postpone the date
fixed for, any payment under any sinking fund or analogous
provisions for any debt security,
- impair the right to institute suit for the enforcement of any
payment on or after the stated maturity thereof, or, in the case of
redemption, on or after the redemption date,
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- limit our obligation to maintain a paying agency outside the United
States for payment on bearer securities, or
- adversely affect the right to convert any debt security into shares
of our common stock if so provided;
(3) reduce the requirement for majority approval of supplemental
indentures, or for waiver of compliance with certain provisions of either
indenture or certain defaults; or
(4) modify any provisions of either indenture relating to waiver of
past defaults with respect to that series, except to increase any such
percentage or to provide that certain other provisions of such indenture
cannot be modified or waived without the consent of the holders of each
such debt security of each series affected thereby. (Section 11.2 of each
indenture).
It is not necessary for holders of the debt securities to approve the
particular form of any proposed supplemental indenture, but it is sufficient if
the holders approve the substance thereof. (Section 11.2 of each indenture).
A supplemental indenture which changes or eliminates any covenant or other
provision of the indenture to which it relates with respect to one or more
particular series of debt securities and coupons, if any, or which modifies the
rights of the holders of debt securities or any coupons of such series with
respect to such covenant or other provision, will be deemed not to affect the
rights under such indenture of the holders of debt securities and coupons, if
any, of any other series. (Section 11.2 of each indenture).
SUBORDINATION UNDER THE SUBORDINATED INDENTURE AND THE JUNIOR SUBORDINATED
INDENTURE
In the subordinated and junior subordinated indentures, RGA has covenanted
and agreed that any subordinated or junior subordinated debt securities issued
thereunder are subordinated and junior in right of payment to all present and
future senior indebtedness to the extent provided in the subordinated indenture.
(Section 17.1 of the subordinated and junior subordinated indentures). Unless
otherwise indicated in the applicable prospectus supplement, the subordinated
and junior subordinated indentures define the term "senior indebtedness" with
respect to each respective series of subordinated and junior subordinated debt
securities, to mean the principal, premium, if any, and interest on:
- all indebtedness of RGA, whether outstanding on the date of the issuance
of subordinated debt securities or thereafter created, incurred or
assumed, which is for money borrowed, or which is evidenced by a note or
similar instrument given in connection with the acquisition of any
business, properties or assets, including securities;
- any indebtedness of others of the kinds described in the preceding clause
for the payment of which RGA is responsible or liable as guarantor or
otherwise; and
- amendments, modifications, renewals, extensions, deferrals and refundings
of any such 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 subordinated indenture. The senior
indebtedness will continue to be senior indebtedness and entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of the senior indebtedness or extension or
renewal of the senior indebtedness. Unless otherwise indicated in the applicable
prospectus supplement, notwithstanding anything to the contrary in the
foregoing, senior indebtedness will not include (A) indebtedness incurred for
the purchase of goods or materials or for services obtained in the ordinary
course of business and (B) any indebtedness which by its terms is expressly made
pari passu, or equal in rank and payment, with or subordinated to the applicable
debt securities. (Section 17.2 of the subordinated and junior subordinated
indentures).
Unless otherwise indicated in the applicable prospectus supplement, no
direct or indirect payment, in cash, property or securities, by set-off or
otherwise, shall be made or agreed to be made on account of the
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subordinated or junior subordinated debt securities or interest thereon or in
respect of any repayment, redemption, retirement, purchase or other acquisition
of subordinated debt securities, if:
- RGA defaults in the payment of any principal, or premium, if any, or
interest on any senior indebtedness, whether at maturity or at a date
fixed for prepayment or declaration or otherwise; or
- an event of default occurs with respect to any senior indebtedness
permitting the holders to accelerate the maturity and written notice of
such event of default, requesting that payments on subordinated or junior
subordinated debt securities cease, is given to RGA by the holders of
senior indebtedness,
unless and until such default in payment or event of default has been cured or
waived or ceases to exist. 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 subordinated indebtedness (Section 17.4 of the subordinated
and junior subordinated indentures).
Unless otherwise indicated in the applicable prospectus supplement, all
present and future senior indebtedness, which shall include subordinated
indebtedness in the case of our junior subordinated debt securities, including,
without limitation, interest accruing after the commencement of any proceeding
described below, assignment or marshaling of assets, shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, shall be made by RGA on account of subordinated or junior subordinated
debt securities in the event of:
- any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to RGA,
its creditors or its property;
- any proceeding for the liquidation, dissolution or other winding-up of
RGA, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings;
- any assignment by RGA for the benefit of creditors; or
- any other marshaling of the assets of RGA.
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. Unless otherwise indicated in the applicable
prospectus supplement, if the payments or distributions on subordinated or
junior subordinated debt securities are in the form of RGA's securities or those
of any other corporation under a plan of reorganization or readjustment and are
subordinated to outstanding senior indebtedness and to any securities issued
with respect to such senior indebtedness under a plan of reorganization or
readjustment, they will be made to the holders of the subordinated debt
securities and then, if any amounts remain, to the holders of the junior
subordinated debt securities. (Section 17.3 of the subordinated and junior
subordinated indentures). No present or future holder of any senior indebtedness
will be prejudiced in the right to enforce the subordination of subordinated or
junior subordinated debt securities by any act or failure to act on the part of
RGA. (Section 17.9 of the subordinated and junior subordinated indentures).
Senior indebtedness will only be deemed to have been paid in full if the
holders of such indebtedness have received cash, securities or other property
which is equal to the amount of the outstanding senior indebtedness. 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. In matters between holders of subordinated debt securities and
any other type of RGA's creditors, any payments or distributions that would
otherwise be paid to holders of senior debt securities and that are made to
holders of subordinated debt securities because of this subrogation will be
deemed a payment by RGA on account of senior indebtedness and not on account of
subordinated debt securities. (Section 17.7 of the subordinated and junior
subordinated indentures).
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Subordinated indebtedness will only be deemed to have been paid in full if
the holders of such indebtedness have received cash, securities or other
property which is equal to the amount of the outstanding subordinated
indebtedness. After payment in full of all present and future subordinated
indebtedness, holders of junior subordinated debt securities will be subrogated
to the rights of any holders of subordinated indebtedness to receive any further
payments or distributions that are applicable to the subordinated indebtedness
until all the junior subordinated debt securities are paid in full. In matters
between holders of junior subordinated debt securities and any other type of
RGA's creditors, any payments or distributions that would otherwise be paid to
holders of subordinated debt securities and that are made to holders of junior
subordinated debt securities because of this subrogation will be deemed a
payment by RGA on account of subordinated indebtedness and not on account of
junior subordinated debt securities. (Section 17.7 of the junior subordinated
indenture).
The subordinated and junior subordinated indentures provide that the
foregoing subordination provisions may be changed, except in a manner which
would be adverse to the holders of subordinated or junior subordinated debt
securities of any series then outstanding. (Sections 11.1 and 11.2 of the
subordinated and junior subordinated indentures). The prospectus supplement
relating to such subordinated or junior subordinated debt securities would
describe any such change.
If this prospectus is being delivered in connection with the offering of a
series of subordinated or junior subordinated debt securities, the accompanying
prospectus supplement or information incorporated by reference will set forth
the approximate amount of indebtedness senior to such subordinated or junior
subordinated indebtedness outstanding as of a recent date. The subordinated and
junior subordinated indentures place no limitation on the amount of additional
senior indebtedness that may be incurred by RGA. RGA expects from time to time
to incur additional indebtedness constituting senior indebtedness. At June 30,
2003, RGA had a carrying value of approximately $377.0 million of long-term
indebtedness, including approximately $37.6 million of outstanding long-term
indebtedness of our subsidiaries. The indebtedness of our subsidiaries would
effectively rank senior to all of RGA's senior, subordinated and junior
subordinated debt securities. The remaining $339.4 million of our outstanding
long-term indebtedness would rank equally with the senior debt securities and
prior in right of payment to the subordinated and junior subordinated debt
securities. At June 30, 2003, RGA had a carrying value of approximately $158.2
million of debt which would rank equal to or junior in right of payment to the
subordinated or junior subordinated debt securities.
EVENTS OF DEFAULT
An event of default with respect to any series of debt securities issued
under each of the indentures means:
- default for 30 days in the payment of any interest upon any debt security
or any payment with respect to the coupons, if any, of such series when
it becomes due and payable, except where we have properly deferred the
interest, if applicable;
- default in the payment of the principal of, and premium, if any, on, any
debt security of such series when due;
- default in the deposit of any sinking fund payment when due by the terms
of a debt security of such series;
- default for 90 days after we receive notice as provided in the applicable
indenture in the performance of any covenant or breach of any warranty in
the indenture governing that series;
- certain events of bankruptcy, insolvency or receivership, or, with
respect to the junior subordinated debt securities, the dissolution of
the RGA trust; or
- any other events which we specify for that series, which will be
indicated in the prospectus supplement for that series. (Section 5.1 of
each indenture).
Within 90 days after a default in respect of any series of debt securities,
the trustee, or property trustee, if applicable, must give to the holders of
such series notice of all uncured and unwaived defaults by us known to
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it. However, except in the case of default in payment, the trustee may withhold
such notice if it determines that such withholding is in the interest of such
holders. (Section 6.2 of each indenture).
If an event of default occurs in respect of any outstanding series of debt
securities, the trustee of the senior or subordinated indentures, the property
trustee under the junior subordinated indenture or the holders of at least 25%
in principal amount of the outstanding debt securities of that series may
declare the principal amount, or, if the debt securities of that series are
original issue discount securities or indexed securities, such portion of the
principal amount as may be specified in the terms of those securities, of all of
the debt securities of that series to be due and payable immediately by written
notice thereof to us, and to the trustee or property trustee, if applicable, if
given by the holders of the debt securities. However, with respect to any debt
securities issued under the subordinated or junior subordinated indenture, the
payment of principal and interest on such debt securities shall remain
subordinated to the extent provided in Article XVII of the subordinated and
junior subordinated indentures. In addition, at any time after such a
declaration of acceleration but before a judgment or decree for payment of the
money due has been obtained, the holders of a majority in principal amount of
outstanding debt securities of that series may, subject to specified conditions,
rescind and annul such acceleration if all events of default, other than the
non-payment of accelerated principal, or premium, if any, or interest on debt
securities of such series have been cured or waived as provided in the
indenture. (Section 5.2 of each indenture).
The holders of a majority in principal amount of the outstanding debt
securities of a series, on behalf of the holders of all debt securities of that
series, may waive any past default and its consequences, except that they may
not waive an uncured default in payment or a default which cannot be waived
without the consent of the holders of all outstanding securities of that series.
(Section 5.13 of each indenture).
Within four months after the close of each fiscal year, we must file with
the trustee a statement, signed by specified officers, stating whether or not
such officers have knowledge of any default under the indenture and, if so,
specifying each such default and the nature and status of each such default.
(Section 12.2 of each indenture).
Subject to provisions in the applicable indenture relating to its duties in
case of default, the trustee, or property trustee, if applicable, is not
required to take action at the request of any holders of debt securities, unless
such holders have offered to the trustee reasonable security or indemnity.
(Section 6.3 of each indenture).
Subject to such indemnification requirements and other limitations set
forth in the applicable indenture, if any event of default has occurred, the
holders of a majority in principal amount of the outstanding debt securities of
any series may direct the time, method and place of conducting proceedings for
remedies available to the trustee, or exercising any trust or power conferred on
the trustee, in respect of such series. (Section 5.12 of each indenture).
DEFEASANCE; SATISFACTION AND DISCHARGE
Legal or Covenant Defeasance. Each indenture provides that we may be
discharged from our obligations in respect of the debt securities of any series,
as described below. These provisions will apply to any registered securities
that are denominated and payable only in U.S. dollars, unless otherwise
specified in a prospectus supplement. The prospectus supplement will describe
any defeasance provisions that apply to other types of debt securities. (Section
15.1 of each indenture).
At our option, we may choose either one of the following alternatives:
- We may elect to be discharged from any and all of our obligations in
respect of the debt securities of any series, except for, among other
things, certain obligations to register the transfer or exchange of debt
securities of such series, to replace stolen, lost or mutilated debt
securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by the trustee for
defeasance. We refer to this as "legal defeasance."
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- Alternatively, we may omit to comply with the covenants described under
the heading "-- Consolidation, Merger, Conveyance, Sale of Assets and
Other Transfers" and any additional covenants which may be set forth in
the applicable prospectus supplement, and any omission to comply with
those covenants will not constitute a default or an event of default with
respect to the debt securities of that series. We refer to this as
"covenant defeasance."
In either case, we will be so discharged upon the deposit with the trustee,
in trust, of money and/or U.S. Government Obligations that, through the payment
of interest and principal in accordance with their terms, will provide money in
an amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay and discharge each installment of
principal, including any mandatory sinking fund payments, premium, if any, and
interest on the debt securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those debt
securities.
This discharge may occur only if, among other things, we have delivered to
the trustee an opinion of counsel or Internal Revenue Service ruling to the
effect that the holders of the debt securities of that series will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of the
defeasance. (Section 15.2 of each indenture).
In addition, with respect to the subordinated and junior subordinated
indentures, in order to be discharged, no event or condition shall exist that,
pursuant to certain provisions described under "-- Subordination under the
Subordinated Indenture and the Junior Subordinated Indenture" above, would
prevent us from making payments of principal of, and premium, if any, and
interest on subordinated or junior subordinated debt securities and coupons at
the date of the irrevocable deposit referred to above. (Section 15.2 of the
subordinated and junior subordinated indentures).
Covenant Defeasance and Events of Default. In the event we exercise our
option to effect covenant defeasance with respect to any series of debt
securities and the debt securities of that series are declared due and payable
because of the occurrence of any event of default, the amount of money and/or
U.S. Government Obligations on deposit with the trustee will be sufficient to
pay amounts due on the debt securities of that series at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt
securities of that series at the time of the acceleration resulting from the
event of default. However, we will remain liable for those payments.
"U.S. Government Obligations" means securities which are (1) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (2) obligations of a person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and will also include a depository receipt issued
by a bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that, except as required by law, such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt. (Section 15.2 of each indenture).
We may exercise our legal defeasance option even if we have already
exercised our covenant defeasance option.
There may be additional provisions relating to defeasance which we will
describe in the prospectus supplement. (Section 15.1 of each indenture).
CONVERSION OR EXCHANGE
Any series of the senior or subordinated debt securities may be convertible
or exchangeable into common or preferred stock or other debt securities
registered under the registration statement relating to this prospectus. The
specific terms and conditions on which such debt securities may be so converted
or exchanged
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will be set forth in the applicable prospectus supplement. Those terms may
include the conversion or exchange price, provisions for conversion or exchange,
either mandatory, at the option of the holder, or at our option, whether we have
an option to convert debt securities into cash, rather than common stock, and
provisions under which the number of shares of common or preferred stock or
other securities to be received by the holders of debt securities would be
calculated as of a time and in the manner stated in the applicable prospectus
supplement. (Section 16.1 of each indenture).
GOVERNING LAW
The indentures and the debt securities will be governed by, and construed
in accordance with, the internal laws of the State of New York. (Section 1.11 of
each indenture).
REGARDING THE TRUSTEE
We will designate the trustee under the senior and subordinated indentures
in a prospectus supplement. Unless otherwise specified in the applicable
prospectus supplement, The Bank of New York will be the trustee under the junior
subordinated indenture relating to the junior subordinated debt securities which
may be offered to the RGA trusts. From time to time, we may enter into banking
or other relationships with any of such trustees or their affiliates.
There may be more than one trustee under each indenture, each with respect
to one or more series of debt securities. (Section 1.1 of each indenture). Any
trustee may resign or be removed with respect to one or more series of debt
securities, and a successor trustee may be appointed to act with respect to such
series. (Section 6.10 of each indenture).
If two or more persons are acting as trustee with respect to different
series of debt securities, each trustee will be a trustee of a trust under the
indenture separate from the trust administered by any other such trustee. Except
as otherwise indicated in this prospectus, any action to be taken by the trustee
may be taken by each such trustee with respect to, and only with respect to, the
one or more series of debt securities for which it is trustee under the
indenture. (Section 6.1 of each indenture).
DESCRIPTION OF CAPITAL STOCK OF RGA
The following is a summary of the material terms of our capital stock and
the provisions of our Second Restated Articles of Incorporation and bylaws. It
also summarizes some relevant provisions of the Missouri General and Business
Corporation Law, which we refer to as Missouri law. Since the terms of our
articles of incorporation, and bylaws, and Missouri law, are more detailed than
the general information provided below, you should only rely on the actual
provisions of those documents and Missouri law. If you would like to read those
documents, they are on file with the SEC, as described under the heading "Where
You Can Find More Information" beginning on page 2.
GENERAL
Our authorized capital stock consists of 75,000,000 shares of common stock,
par value $0.01 per share, and 10,000,000 shares of preferred stock, par value
$0.01 per share.
COMMON STOCK
All of our outstanding shares of common stock are fully paid and
nonassessable. Subject to the prior rights of the holders of any shares of
preferred stock which later may be issued and outstanding, holders of common
stock are entitled to receive dividends as and when declared by us out of
legally available funds, and, if we liquidate, dissolve, or wind up RGA, to
share ratably in all remaining assets after we pay liabilities. We are
prohibited from paying dividends under our credit agreement unless, at the time
of declaration and payment, a default would not exist under the agreement. Each
holder of common stock is entitled to one vote for each share held of record on
all matters presented to a vote of shareholders, including the election of
directors. Holders of common stock have no cumulative voting rights or
preemptive rights to purchase or
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subscribe for any stock or other securities and there are no conversion rights
or redemption or sinking fund provisions for the common stock.
We may issue additional shares of authorized common stock without
shareholder approval, subject to applicable rules of the New York Stock
Exchange. At our annual meeting of shareholders on May 23, 2001, our
shareholders, including MetLife, adopted a proposal authorizing our board of
directors to approve, during the three years following the date of the
shareholder meeting, any sales to MetLife or its affiliates of our equity
securities, including our common stock or other securities convertible into or
exercisable for our common stock, in which the number of shares will not exceed
the number of shares that would enable MetLife to maintain its then current
ownership percentage of our common stock. Any such sale would be on
substantially the same terms as a sale to unaffiliated third parties. The
shareholder approval was obtained to comply with applicable New York Stock
Exchange rules regarding issuances of common equity to a substantial shareholder
such as MetLife.
Mellon Investor Services LLC, Ridgefield Park, New Jersey is the registrar
and transfer agent for our common stock. Our common stock is listed on the New
York Stock Exchange under the symbol "RGA."
PREFERRED STOCK
Our articles of incorporation vests our board of directors with authority
to issue up to 10,000,000 shares of preferred stock from time to time in one or
more series, with such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, as may
be stated in the resolution or resolutions providing for the issuance of such
stock adopted from time to time by the board of directors. Our board of
directors is expressly authorized to fix or determine:
- the specific designation of the shares of the series;
- the consideration for which the shares of the series are to be issued;
- the rate and times at which, and the conditions under which, dividends
will be payable on shares of that series, and the status of those
dividends as cumulative or non-cumulative and, if cumulative, the date or
dates from which dividends shall be cumulative;
- the price or prices, times, terms and conditions, if any, upon which the
shares of the series may be redeemed;
- the rights, if any, which the holders of shares of the series have in the
event of dissolution or upon distribution of our assets;
- from time to time, whether to include the additional shares of preferred
stock which we are authorized to issue in the series;
- whether or not the shares of the series are convertible into or
exchangeable for other securities of RGA, including shares of our common
stock or shares of any other series of our preferred stock, the price or
prices or the rate or rates at which conversion or exchange may be made,
and the terms and conditions upon which the conversion or exchange right
may be exercised;
- if a sinking fund will be provided for the purchase or redemption of
shares of the series and, if so, to fix the terms and the amount or
amounts of the sinking fund; and
- any other preferences and rights, privileges and restrictions applicable
to the series as may be permitted by law.
All shares of the same series of preferred stock will be identical and of
equal rank except as to the times from which cumulative dividends, if any, on
those shares will be cumulative. The shares of different series may differ,
including as to rank, as may be provided in our articles of incorporation, or as
may be fixed by our board of directors as described above. We may from time to
time amend our articles of incorporation to increase or decrease the number of
authorized shares of preferred stock.
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The material terms of any series of preferred stock being offered by us
will be described in the prospectus supplement relating to that series of
preferred stock. If so indicated in the prospectus supplement and if permitted
by the articles of incorporation and by law, the terms of any such series may
differ from the terms set forth below. That prospectus supplement may not
restate the amendment to our articles of incorporation or the board resolution
that establishes a particular series of preferred stock in its entirety. We urge
you to read that amendment or board resolution because it, and not the
description in the prospectus supplement, will define your rights as a holder of
preferred stock. The certificate of amendment to our articles of incorporation
or board resolution will be filed with the Secretary of State of the State of
Missouri and with the SEC.
Dividend Rights. The preferred stock will be preferred as to payment of
dividends over our common stock or any other stock ranking junior to the
preferred stock as to dividends. Before any dividends or distributions on our
common stock or stock of junior rank, other than dividends or distributions
payable in common stock, are declared and set apart for payment or paid, the
holders of shares of each series of preferred stock will be entitled to receive
dividends when, as and if declared by our board of directors. We will pay those
dividends either in cash, shares of common stock or preferred stock or
otherwise, at the rate and on the date or dates indicated in the applicable
prospectus supplement. With respect to each series of preferred stock, the
dividends on each share of that series will be cumulative from the date of issue
of the share unless some other date is set forth in the prospectus supplement
relating to the series. Accruals of dividends will not bear interest. We are
prohibited from paying dividends under our credit agreement unless, at the time
of declaration and payment, a default would not exist under the agreement.
Rights upon Liquidation. The preferred stock will be preferred over common
stock, or any other stock ranking junior to the preferred stock with respect to
distribution of assets, as to our assets so that the holders of each series of
preferred stock will be entitled to be paid, upon voluntary or involuntary
liquidation, dissolution or winding up and before any distribution is made to
the holders of common stock or stock of junior rank, the amount set forth in the
applicable prospectus supplement. However, in this case the holders of preferred
stock will not be entitled to any other or further payment. If upon any
liquidation, dissolution or winding up our net assets are insufficient to permit
the payment in full of the respective amounts to which the holders of all
outstanding preferred stock are entitled, our entire remaining net assets will
be distributed among the holders of each series of preferred stock in an amount
proportional to the full amounts to which the holders of each series are
entitled.
Redemption. All shares of any series of preferred stock will be redeemable
to the extent set forth in the prospectus supplement relating to the series.
Conversion or Exchange. Shares of any series of preferred stock will be
convertible into or exchangeable for shares of common stock or preferred stock
or other securities to the extent set forth in the applicable prospectus
supplement.
Preemptive Rights. No holder of shares of any series of preferred stock
will have any preemptive or preferential rights to subscribe to or purchase
shares of any class or series of stock, now or hereafter authorized, or any
securities convertible into, or warrants or other evidences of optional rights
to purchase or subscribe to, shares of any series, now or hereafter authorized.
Voting Rights. Except as indicated in the applicable prospectus
supplement, the holders of preferred stock will be entitled to one vote for each
share of preferred stock held by them on all matters properly presented to
shareholders. Except as otherwise provided in the amendment to our articles of
incorporation or the directors resolution that creates a specified class of
preferred stock, the holders of common stock and the holders of all series of
preferred stock will vote together as one class. In addition, currently under
Missouri law, even if shares of a particular class or series of stock are not
otherwise entitled to a vote on any matters submitted to the shareholders,
amendments to the articles of incorporation which adversely affect those shares
require a vote of the class or series of which such shares are a part, including
amendments which would:
- increase or decrease the aggregate number or par value of authorized
shares of the class or series;
- create a new class of shares having rights and preferences prior or
superior to the shares of the class or series;
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- increase the rights and preferences, or the number of authorized shares,
of any class having rights and preferences prior to or superior to the
rights of the class or series; or
- alter or change the powers, preferences or special rights of the shares
of such class or series so as to affect such shares adversely.
Most of our operations are conducted through our subsidiaries, and thus our
ability to pay dividends on any series of preferred stock is dependent on their
financial condition, results of operations, cash requirements and other related
factors. Our subsidiaries are also subject to restrictions on dividends and
other distributions contained under applicable insurance laws and related
regulations.
Depending upon the rights of holders of the preferred stock, an issuance of
preferred stock could adversely affect holders of common stock by delaying or
preventing a change of control of RGA, making removal of the management of RGA
difficult, or restricting the payment of dividends and other distributions to
the holders of common stock. We presently have no intention to issue any shares
of preferred stock.
As described under "Description of Depositary Shares of RGA," we may, at
our option, elect to offer depositary shares evidenced by depositary receipts,
each representing an interest, to be specified in the applicable prospectus
supplement for the particular series of the preferred stock, in a share of the
particular series of the preferred stock issued and deposited with a preferred
stock depositary. All shares of preferred stock offered by this prospectus, or
issuable upon conversion, exchange or exercise of securities, will, when issued,
be fully paid and non-assessable.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
We may issue additional shares of common stock or preferred stock without
shareholder approval, subject to applicable rules of the New York Stock
Exchange, for a variety of corporate purposes, including raising additional
capital, corporate acquisitions, and employee benefit plans. The existence of
unissued and unreserved common and preferred stock may enable us to issue shares
to persons who are friendly to current management, which could discourage an
attempt to obtain control of RGA through a merger, tender offer, proxy contest,
or otherwise, and protect the continuity of management and possibly deprive you
of opportunities to sell your shares at prices higher than the prevailing market
prices. We could also use additional shares to dilute the stock ownership of
persons seeking to obtain control of RGA pursuant to the operation of the rights
plan or otherwise. See also "-- Certain Charter and Bylaw Provisions" below.
SERIES A PREFERRED STOCK
Our board has authorized the issuance of 500,000 shares of preferred stock
as Series A junior participating preferred stock in connection with its adoption
of a shareholder rights plan that has expired. We designed the dividend,
liquidation, voting and redemption features of the Series A preferred stock so
that the value of one two hundred twenty fifth (1/225th) of a share of Series A
preferred stock approximates the value of one share of common stock. Shares of
Series A preferred stock could only be purchased, if at all, during the term of
the rights agreement and are therefore no longer available for purchase. Each
share of the Series A preferred stock:
- is nonredeemable and junior to all other series of preferred stock,
unless otherwise provided in the terms of those series of preferred
stock;
- will have a preferential dividend in an amount equal to the greater of
$1.00 and 225 times any dividend declared on each share of common stock;
- in the event of liquidation, will entitle its holder to (1) receive a
preferred liquidation payment equal to $100, plus the amount of any
accrued and unpaid dividends, and (2) following payment of a specified
amount to the holders of the common stock, to participate in any further
distributions of the RGA's remaining assets;
- will have 225 votes, voting together with our common stock and any other
capital stock with general voting rights; and
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- in the event of any merger, consolidation or other transaction in which
shares of common stock are converted or exchanged, will be entitled to
receive 225 times the amount and type of consideration received per share
of common stock.
The rights of the Series A preferred stock as to dividends, liquidation and
voting, and in the event of mergers and consolidations, are protected by
customary antidilution provisions. No shares of the Series A preferred stock are
outstanding, and we do not intend to issue any of these shares.
CERTAIN CHARTER AND BYLAW PROVISIONS
Our articles of incorporation and bylaws:
- provide for a classified board of directors;
- limit the right of shareholders to remove directors or change the size of
the board of directors;
- limit the right of shareholders to fill vacancies on the board of
directors;
- limit the right of shareholders to act by written consent and to call a
special meeting of shareholders or propose other actions;
- require a higher percentage of shareholders than would otherwise be
required to amend, alter, change, or repeal the provisions of our
articles of incorporation and bylaws; and
- provide that the bylaws may be amended only by the majority vote of the
entire board of directors.
Shareholders will not be able to amend the bylaws without first amending
the articles of incorporation. These provisions may discourage certain types of
transactions that involve an actual or threatened change of control of RGA.
Since the terms of our articles of incorporation and bylaws may differ from the
general information we are providing, you should only rely on the actual
provisions of our articles of incorporation and bylaws. If you would like to
read our articles of incorporation and bylaws, they are on file with the SEC or
you may request a copy from us.
SIZE OF BOARD
Our articles of incorporation provide that the number of directors to
constitute the board of directors is ten, and hereafter the number of directors
will be fixed from time to time as provided in our bylaws. Our bylaws provide
for a board of directors of at least three directors and permit the board of
directors to increase or decrease the number of directors. In accordance with
our bylaws, our board of directors has fixed the number of directors at eleven.
Three of our directors left the Board during 2002, and one resigned in 2003. The
Board has not filled the vacancies created by these departures, and currently
there are seven directors. Our articles of incorporation further provide that
our bylaws may be amended only by majority vote of our entire board of
directors.
ELECTION OF DIRECTORS
In order for one of our shareholders to nominate a candidate for director,
our articles of incorporation require that such shareholder give timely notice
to us in advance of the meeting. Ordinarily, the shareholder must give notice
not less than 60 days nor more than 90 days before the meeting, but if we give
less than 70 days' notice of the meeting, then the shareholder must give notice
within ten days after we mail notice of the meeting or make a public disclosure
of the meeting. The notice must describe various matters regarding the nominee,
including the nominee's name, address, occupation, and shares held. Our articles
of incorporation do not permit cumulative voting in the election of directors.
Accordingly, the holders of a majority of the then outstanding shares of common
stock can elect all the directors of the class then being elected at that
meeting of shareholders.
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CLASSIFIED BOARD
Our articles of incorporation and bylaws provide that our board will be
divided into three classes, with the classes to be as nearly equal in number as
possible, and that one class shall be elected each year and serve for a
three-year term.
REMOVAL OF DIRECTORS
Missouri law provides that, unless a corporation's articles of
incorporation provide otherwise, the holders of a majority of the corporation's
voting stock may remove any director from office. Our articles of incorporation
provide that shareholders may remove a director only "for cause" and with the
approval of the holders of 85% of RGA's voting stock.
FILLING VACANCIES
Missouri law further provides that, unless a corporation's articles of
incorporation or bylaws provide otherwise, all vacancies on a corporation's
board of directors, including any vacancies resulting from an increase in the
number of directors, may be filled by the vote of a majority of the remaining
directors even if that number is less than a quorum. Our articles of
incorporation provide that, subject to the rights, if any, of the holders of any
class of preferred stock then outstanding and except as described below, only
the vote of a majority of the remaining directors may fill vacancies (although
less than a quorum).
LIMITATIONS ON SHAREHOLDER ACTION BY WRITTEN CONSENT
As required by Missouri law, our bylaws provide that any action by written
consent of shareholders in lieu of a meeting must be unanimous.
LIMITATIONS ON CALLING SHAREHOLDER MEETINGS
Under our articles of incorporation shareholders may not call special
meetings of shareholders or require our board to call a special meeting of
shareholders, and only a majority of our entire board of directors, our chairman
of the board or our president may call a special meeting of shareholders.
LIMITATIONS ON PROPOSALS OF OTHER BUSINESS
In order for a shareholder to bring a proposal before a shareholder
meeting, our articles of incorporation require that the shareholder give timely
notice to us in advance of the meeting. Ordinarily, the shareholder must give
notice at least 60 days but not more than 90 days before the meeting, but if we
give less than 70 days' notice of the meeting, then the shareholder must give
notice within ten days after we mail notice of the meeting or make other public
disclosure of the meeting. The notice must include a description of the
proposal, the reasons for the proposal, and other specified matters.
Our board may reject any proposals that have not followed these procedures
or that are not a proper subject for shareholder action in accordance with the
provisions of applicable law.
ANTI-TAKEOVER EFFECTS OF PROVISIONS
The classification of directors, the inability to vote shares cumulatively,
the advance notice requirements for nominations, and the provisions in our
articles of incorporation that limit the ability of shareholders to increase the
size of our board or to remove directors and that permit the remaining directors
to fill any vacancies on our board make it more difficult for shareholders to
change the composition of our board. As a result, at least two annual meetings
of shareholders may be required for the shareholders to change a majority of the
directors, whether or not a change in our board would benefit RGA and its
shareholders and whether or not a majority of our shareholders believes that the
change would be desirable.
The provision of our bylaws which requires unanimity for shareholder action
by written consent gives all our shareholders entitled to vote on a proposed
action the opportunity to participate in the action and prevents
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the holders of a majority of the voting power of RGA from using the written
consent procedure to take shareholder action. The bylaw provision requiring
advance notice of other proposals may make it more difficult for shareholders to
take action opposed by the board. Moreover, a shareholder cannot force a
shareholder consideration of a proposal over the opposition of our board of
directors by calling a special meeting of shareholders.
These provisions make it more difficult and time-consuming to obtain
majority control of our board of directors or otherwise bring a matter before
shareholders without our board's consent, and thus reduce the vulnerability of
RGA to an unsolicited takeover proposal. These provisions enable RGA to develop
its business in a manner which will foster its long-term growth, by reducing to
the extent practicable the threat of a takeover not in the best interests of RGA
and its shareholders and the potential disruption entailed by the threat. On the
other hand, these provisions may adversely affect the ability of shareholders to
influence the governance of RGA and the possibility that shareholders would
receive a premium above market price for their securities from a potential
acquirer who is unfriendly to management.
MISSOURI STATUTORY PROVISIONS
Missouri law also contains certain provisions which may have an
anti-takeover effect and otherwise discourage third parties from effecting
transactions with us, including control share acquisition and business
combination statutes.
BUSINESS COMBINATION STATUTE
Missouri law contains a "business combination statute" which restricts
certain "business combinations" between us and an "interested shareholder," or
affiliates of the interested shareholder, for a period of five years after the
date of the transaction in which the person becomes an interested shareholder,
unless either such transaction or the interested shareholder's acquisition of
stock is approved by our board on or before the date the interested shareholder
obtains such status.
The statute also prohibits business combinations after the five-year period
following the transaction in which the person becomes an interested shareholder
unless the business combination or purchase of stock prior to becoming an
interested shareholder is approved by our board prior to the date the interested
shareholder obtains such status.
The statute also provides that, after the expiration of such five year
period, business combinations are prohibited unless:
- the holders of a majority of the outstanding voting stock, other than the
stock owned by the interested shareholder, approve the business
combination; or
- the business combination satisfies certain detailed fairness and
procedural requirements.
A "business combination" includes a merger or consolidation, some sales,
leases, exchanges, pledges and similar dispositions of corporate assets or stock
and any reclassifications or recapitalizations that increase the proportionate
voting power of the interested shareholder. An "interested shareholder"
generally means any person who, together with his or her affiliates and
associates, owns or controls 20% or more of the outstanding shares of the
corporation's voting stock.
A Missouri corporation may opt out of coverage by the business combination
statute by including a provision to that effect in its governing corporate
documents. We have not done so. However, our board of directors adopted a
resolution approving the acquisition of beneficial ownership by MetLife as an
"interested shareholder," thereby rendering the statute inapplicable to MetLife.
The business combination statute may make it more difficult for a 20%
beneficial owner to effect other transactions with us and may encourage persons
that seek to acquire us to negotiate with our board prior to acquiring a 20%
interest. It is possible that such a provision could make it more difficult to
accomplish a transaction which shareholders may otherwise deem to be in their
best interest.
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CONTROL SHARE ACQUISITION STATUTE
Missouri also has a "control share acquisition statute." This statute may
limit the rights of a shareholder to vote some or all of his shares. A
shareholder whose acquisition of shares results in that shareholder having
voting power, when added to the shares previously held by him, to exercise or
direct the exercise of more than a specified percentage of our outstanding stock
(beginning at 20%), will lose the right to vote some or all of his shares in
excess of such percentage unless the shareholders approve the acquisition of
such shares.
In order for the shareholders to grant approval, the acquiring shareholder
must meet certain disclosure requirements specified in the statute. In addition,
a majority of the outstanding voting shares, as determined before the
acquisition, must approve the acquisition. Furthermore, a majority of the
outstanding voting shares, as determined after the acquisition, but excluding
shares held by the acquiring shareholder or employee directors and officers,
must approve the acquisition.
Not all acquisitions of shares constitute control share acquisitions. The
following acquisitions do not constitute control share acquisitions:
- good faith gifts;
- transfers in accordance with wills;
- purchases made in connection with an issuance by us;
- purchases by any compensation or benefit plan;
- the conversion of debt securities;
- mergers involving us which satisfy other specified requirements of the
General and Business Corporation Law of Missouri;
- transactions with a person who owned a majority of our voting power
within the prior year, or
- purchases from a person who previously satisfied the requirements of the
control share statute, so long as the acquiring person does not have
voting power after the ownership in a different ownership range than the
selling shareholder.
A Missouri corporation may opt out of coverage by the control share
acquisition statute by including a provision to that effect in its governing
corporate documents. We amended our bylaws to provide that the control share
acquisition statute shall not apply to control share acquisitions of our capital
stock.
TAKEOVER BID DISCLOSURE STATUTE
Missouri's "takeover bid disclosure statute" requires that, under some
circumstances, before making a tender offer that would result in the offeror
acquiring control of us, the offeror must file certain disclosure materials with
the Commissioner of the Missouri Department of Securities.
INSURANCE HOLDING COMPANIES ACT
We are regulated in Missouri as an insurance holding company. Under the
Missouri Insurance Holding Companies Act and related regulations, the
acquisition of control of a domestic insurer must receive prior approval by the
Missouri Department of Insurance. Missouri law provides that a transaction will
be approved if the Department of Insurance finds that the transaction would,
among other things, not violate the law or be contrary to the interests of the
insureds of any participating domestic insurance corporations. The Department of
Insurance may approve any proposed change of control subject to conditions.
DESCRIPTION OF DEPOSITARY SHARES OF RGA
The description of any deposit agreement and any related depositary shares
and depositary receipts in this prospectus and in any prospectus supplement of
certain provisions are summaries of the material provisions of that deposit
agreement and of the depositary shares and depositary receipts. These
descriptions do not restate
35
those agreements and do not contain all of the information that you may find
useful. We urge you to read the applicable agreements because they, and not the
summaries, define your rights as a holder of the depositary shares. For more
information, please review the form of deposit agreement and form of depositary
receipts relating to each series of the preferred stock, which will be filed
with the SEC promptly after the offering of that series of preferred stock and
will be available as described under the heading "Where You Can Find More
Information" beginning on page 2.
GENERAL
We may elect to have shares of preferred stock represented by depositary
shares. The shares of any series of the preferred stock underlying the
depositary shares will be deposited under a separate deposit agreement between
us and a bank or trust company we select. The prospectus supplement relating to
a series of depositary shares will set forth the name and address of this
preferred stock depositary. Subject to the terms of the deposit agreement, each
owner of a depositary share will be entitled, proportionately, to all the
rights, preferences and privileges of the preferred stock represented by such
depositary share, including dividend, voting, redemption, conversion, exchange
and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the preferred stock
described in the applicable prospectus supplement.
A holder of depositary shares will be entitled to receive the shares of
preferred stock, but only in whole shares of preferred stock, underlying those
depositary shares. If the depositary receipts delivered by the holder evidence a
number of depositary shares in excess of the whole number of shares of preferred
stock to be withdrawn, the depositary will deliver to that holder at the same
time a new depositary receipt for the excess number of depositary shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depositary will distribute all cash dividends or other
cash distributions in respect of the series of preferred stock represented by
the depositary shares to the record holders of depositary receipts in
proportion, to the extent possible, to the number of depositary shares owned by
those holders. The depositary, however, will distribute only the amount that can
be distributed without attributing to any depositary share a fraction of one
cent, and any undistributed balance will be added to and treated as part of the
next sum received by the depositary for distribution to record holders of
depositary receipts then outstanding.
If there is a distribution other than in cash in respect of the preferred
stock, the preferred stock depositary will distribute property received by it to
the record holders of depositary receipts in proportion, insofar as possible, to
the number of depositary shares owned by those holders, unless the preferred
stock depositary determines that it is not feasible to make such a distribution.
In that case, the preferred stock depositary may, with our approval, adopt any
method that it deems equitable and practicable to effect the distribution,
including a public or private sale of the property and distribution of the net
proceeds from the sale to the holders.
The amount distributed in any of the above cases will be reduced by any
amount we or the preferred stock depositary are required to withhold on account
of taxes.
CONVERSION AND EXCHANGE
If any series of preferred stock underlying the depositary shares is
subject to provisions relating to its conversion or exchange as set forth in an
applicable prospectus supplement, each record holder of depositary receipts will
have the right or obligation to convert or exchange the depositary shares
evidenced by the depositary receipts pursuant to those provisions.
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REDEMPTION OF DEPOSITARY SHARES
If any series of preferred stock underlying the depositary shares is
subject to redemption, the depositary shares will be redeemed from the proceeds
received by the preferred stock depositary resulting from the redemption, in
whole or in part, of the preferred stock held by the preferred stock depositary.
Whenever we redeem a share of preferred stock held by the preferred stock
depositary, the preferred stock depositary will redeem as of the same redemption
date a proportionate number of depositary shares representing the shares of
preferred stock that were redeemed. The redemption price per depositary share
will be equal to the aggregate redemption price payable with respect to the
number of shares of preferred stock underlying the depositary shares. If fewer
than all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or proportionately as we may determine.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive the
redemption price. Any funds that we deposit with the preferred stock depositary
relating to depositary shares which are not redeemed by the holders of the
depositary shares will be returned to us after a period of two years from the
date the funds are deposited by us.
VOTING
Upon receipt of notice of any meeting at which the holders of any shares of
preferred stock underlying the depositary shares are entitled to vote, the
preferred stock depositary will mail the information contained in the notice to
the record holders of the depositary receipts. Each record holder of the
depositary receipts on the record date, which will be the same date as the
record date for the preferred stock, may then instruct the preferred stock
depositary as to the exercise of the voting rights pertaining to the number of
shares of preferred stock underlying that holder's depositary shares. The
preferred stock depositary will try to vote the number of shares of preferred
stock underlying the depositary shares in accordance with the instructions, and
we will agree to take all reasonable action which the preferred stock depositary
deems necessary to enable the preferred stock depositary to do so. The preferred
stock depositary will abstain from voting the preferred stock to the extent that
it does not receive specific written instructions from holders of depositary
receipts representing the preferred stock.
RECORD DATE
Subject to the provisions of the deposit agreement, whenever
- any cash dividend or other cash distribution becomes payable,
- any distribution other than cash is made,
- any rights, preferences or privileges are offered with respect to the
preferred stock,
- the preferred stock depositary receives notice of any meeting at which
holders of preferred stock are entitled to vote or of which holders of
preferred stock are entitled to notice, or
- the preferred stock depositary receives notice of the mandatory
conversion of or any election by us to call for the redemption of any
preferred stock, the preferred stock depositary will in each instance fix
a record date, which will be the same as the record date for the
preferred stock, for the determination of the holders of depositary
receipts:
- who will be entitled to receive dividend, distribution, rights,
preferences or privileges or the net proceeds of any sale, or
- who will be entitled to give instructions for the exercise of voting
rights at any such meeting or to receive notice of the meeting or the
redemption or conversion.
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WITHDRAWAL OF PREFERRED STOCK
Upon surrender of depositary receipts at the principal office of the
preferred stock depositary, upon payment of any unpaid amount due the preferred
stock depositary, and subject to the terms of the deposit agreement, the owner
of the depositary shares evidenced by the depositary receipts is entitled to
delivery of the number of whole shares of preferred stock and all money and
other property, if any, represented by the depositary shares. Partial shares of
preferred stock will not be issued. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of preferred stock to
be withdrawn, the preferred stock depositary will deliver to the holder at the
same time a new depositary receipt evidencing the excess number of depositary
shares. Holders of preferred stock that are withdrawn will not be entitled to
deposit the shares that have been withdrawn under the deposit agreement or to
receive depositary receipts.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
We and the preferred stock depositary may at any time agree to amend the
form of depositary receipt and any provision of the deposit agreement. However,
any amendment that materially and adversely alters the rights of holders of
depositary shares will not be effective unless the amendment has been approved
by the holders of at least a majority of the depositary shares then outstanding.
The deposit agreement may be terminated by us or by the preferred stock
depositary only if all outstanding shares have been redeemed or if a final
distribution in respect of the underlying preferred stock has been made to the
holders of the depositary shares in connection with the liquidation, dissolution
or winding up of us.
CHARGES OF PREFERRED STOCK DEPOSITARY
We will pay all charges of the preferred stock depositary including charges
in connection with the initial deposit of the preferred stock, the initial
issuance of the depositary receipts, the distribution of information to the
holders of depositary receipts with respect to matters on which preference stock
is entitled to vote, withdrawals of the preferred stock by the holders of
depositary receipts or redemption or conversion of the preferred stock, except
for taxes (including transfer taxes, if any) and other governmental charges and
any other charges expressly provided in the deposit agreement to be at the
expense of holders of depositary receipts or persons depositing preferred stock.
MISCELLANEOUS
Neither we nor the preferred stock depositary will be liable if either of
us is prevented or delayed by law or any circumstance beyond our control in
performing any obligations under the deposit agreement. The obligations of the
preferred stock depositary under the deposit agreement are limited to performing
its duties under the agreement without negligence or bad faith. Our obligations
under the deposit agreement are limited to performing our duties in good faith.
Neither we nor the preferred stock depositary is obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. We and the preferred stock
depositary may rely on advice of or information from counsel, accountants or
other persons that they believe to be competent and on documents that they
believe to be genuine.
The preferred stock depositary may resign at any time or be removed by us,
effective upon the acceptance by its successor of its appointment. If we have
not appointed a successor preferred stock depositary and the successor
depositary has not accepted its appointment within 60 days after the preferred
stock depositary delivered a resignation notice to us, the preferred stock
depositary may terminate the deposit agreement. See "-- Amendment and
Termination of the Deposit Agreement" above.
DESCRIPTION OF WARRANTS OF RGA
We may issue warrants to purchase debt securities, common stock, preferred
stock or other securities. We may issue warrants independently or as part of a
unit with other securities, including, without limitation,
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preferred securities issued by the RGA trusts. Warrants sold with other
securities as a unit may be attached to or separate from the other securities.
We will issue warrants under one or more warrant agreements between us and a
warrant agent that we will name in the applicable prospectus supplement.
The prospectus supplement relating to any warrants we are offering will
include specific terms relating to the offering, including a description of any
other securities sold together with the warrants. These terms will include some
or all of the following:
- the title of the warrants;
- the aggregate number of warrants offered;
- the price or prices at which the warrants will be issued;
- the currency or currencies, including composite currencies, in which the
prices of the warrants may be payable;
- the designation, number and terms of the debt securities, common stock,
preferred stock or other securities or rights, including rights to
receive payment in cash or securities based on the value, rate or price
of one or more specified commodities, currencies or indices, purchasable
upon exercise of the warrants and procedures by which those numbers may
be adjusted;
- the exercise price of the warrants and the currency or currencies,
including composite currencies, in which such price is payable;
- the dates or periods during which the warrants are exercisable;
- the designation and terms of any securities with which the warrants are
issued as a unit;
- if the warrants are issued as a unit with another security, the date on
and after which the warrants and the other security will be separately
transferable;
- if the exercise price is not payable in U.S. dollars, the foreign
currency, currency unit or composite currency in which the exercise price
is denominated;
- any minimum or maximum amount of warrants that may be exercised at any
one time;
- any terms relating to the modification of the warrants; and
- any other terms of the warrants, including terms, procedures and
limitations relating to the transferability, exchange, exercise or
redemption of the warrants.
Warrants issued for securities other than our debt securities, common stock
or preferred stock or the preferred securities of an RGA trust will not be
exercisable until at least one year from the date of sale of the warrant.
The applicable prospectus supplement will describe the specific terms of
any warrant units.
The descriptions of the warrant agreements in this prospectus and in any
prospectus supplement are summaries of the material provisions of the applicable
agreements. These descriptions do not restate those agreements in their entirety
and do not contain all of the information that you may find useful. We urge you
to read the applicable agreements because they, and not the summaries, define
your rights as holders of the warrants or any warrant units. For more
information, please review the form of the relevant agreements, which will be
filed with the SEC promptly after the offering of warrants or warrant units and
will be available as described under the heading "Where You Can Find More
Information" beginning on page 2 above.
DESCRIPTION OF PURCHASE CONTRACTS OF RGA
As may be specified in a prospectus supplement, we may issue purchase
contracts obligating holders to purchase from us, and us to sell to the holders,
a number of debt securities, shares of our common stock, preferred stock or
depositary shares or warrants or trust preferred securities of an RGA Trust at a
future date
39
or dates. The purchase contracts may require us to make periodic payments to the
holders of the purchase contracts. These payments may be unsecured or prefunded
on some basis to be specified in the applicable prospectus supplement.
The prospectus supplement relating to any purchase contracts we are
offering will specify the material terms of the purchase contracts and any
applicable pledge or depository arrangements, including one or more of the
following:
- The stated amount that a holder will be obligated to pay under the
purchase contract in order to purchase our debt securities, common stock,
preferred stock, depositary shares or warrants, or trust preferred
securities of an RGA Trust or the formula by which such amount shall be
determined.
- The settlement date or dates on which the holder will be obligated to
purchase such securities. The prospectus supplement will specify whether
the occurrence of any events may cause the settlement date to occur on an
earlier date and the terms on which an early settlement would occur.
- The events, if any, that will cause our obligations and the obligations
of the holder under the purchase contract to terminate.
- The settlement rate, which is a number that, when multiplied by the
stated amount of a purchase contract, determines the number of securities
that we or an RGA trust will be obligated to sell and a holder will be
obligated to purchase under that purchase contract upon payment of the
stated amount of that purchase contract. The settlement rate may be
determined by the application of a formula specified in the prospectus
supplement. If a formula is specified, it may be based on the market
price of such securities over a specified period or it may be based on
some other reference statistic.
- Whether the purchase contracts will be issued separately or as part of
units consisting of a purchase contract and an underlying security with
an aggregate principal amount equal to the stated amount. Any underlying
securities will be pledged by the holder to secure its obligations under
a purchase contract.
- The type of underlying security, if any, that is pledged by the holder to
secure its obligations under a purchase contract. Underlying securities
may be our debt securities, depositary shares, preferred securities,
common stock, warrants or debt obligations, trust preferred securities of
an RGA trust or government securities.
- The terms of the pledge arrangement relating to any underlying
securities, including the terms on which distributions or payments of
interest and principal on any underlying securities will be retained by a
collateral agent, delivered to us or be distributed to the holder.
- The amount of the contract fee, if any, that may be payable by us to the
holder or by the holder to us, the date or dates on which the contract
fee will be payable and the extent to which we or the holder, as
applicable, may defer payment of the contract fee on those payment dates.
The contract fee may be calculated as a percentage of the stated amount
of the purchase contract or otherwise.
The descriptions of the purchase contracts and any applicable underlying
security or pledge or depository arrangements in this prospectus and in any
prospectus supplement are summaries of the material provisions of the applicable
agreements. These descriptions do not restate those agreements in their
entirety. We urge you to read the applicable agreements because they, and not
the summaries, define your rights as holders of the purchase contracts. We will
make copies of the relevant agreements available as described under the heading
"Where You Can Find More Information" beginning on page 2 above.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units
comprised of one or more of the other securities described in this prospectus in
any combination. Each unit may also include debt obligations of third parties,
such as U.S. Treasury securities. Each unit will be issued so that the holder of
the unit is also
40
the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. The
prospectus supplement will describe:
- the designation and terms of the units and of the securities comprising
the units, including whether and under what circumstances the securities
comprising the units may be held or transferred separately;
- a description of the terms of any unit agreement governing the units;
- a description of the provisions for the payment, settlement, transfer or
exchange of the units; and
- whether the units will be issued in fully registered or global form.
The descriptions of the units and any applicable underlying security or
pledge or depository arrangements in this prospectus and in any prospectus
supplement are summaries of the material provisions of the applicable
agreements. These descriptions do not restate those agreements in their
entirety. We urge you to read the applicable agreements because they, and not
the summaries, define your rights as holders of the units. We will make copies
of the relevant agreements available as described under the heading "Where You
Can Find More Information" beginning on page 2 above.
DESCRIPTION OF PREFERRED SECURITIES OF THE RGA TRUSTS
Each RGA trust may issue, from time to time, one series of preferred
securities having terms described in the prospectus supplement. Preferred
securities may be issued either independently or as part of a unit with other
securities, including, without limitation, warrants to purchase common stock of
RGA. Preferred securities sold with other securities as a unit may be attached
to or separate from the other securities. The proceeds from the sale of each
trust's preferred and common securities will be used by such trust to purchase a
series of junior subordinated debt securities issued by RGA. The junior
subordinated debt securities will be held in trust by the trust's property
trustee for the benefit of the holders of such preferred and common securities.
Each amended and restated trust agreement has been or will be qualified as an
indenture under the Trust Indenture Act. The property trustee for each trust,
The Bank of New York, an independent trustee, will act as indenture trustee for
the preferred securities for purposes of compliance with the provisions of the
Trust Indenture Act. The preferred securities will have the terms, including
distributions, redemption, voting, liquidation rights, maturity date or dates
and the other preferred, deferred or other special rights or restrictions as are
established by the administrative trustees in accordance with the applicable
amended and restated trust agreement or as are set forth in the amended and
restated trust agreement or made part of the amended and restated trust
agreement by the Trust Indenture Act. Such terms, rights and restrictions will
mirror the terms of the junior subordinated debt securities held by the
applicable trust and will be described in the applicable prospectus supplement.
The prospectus supplement relating to the preferred securities of the
applicable RGA trust will provide specific terms, including:
- the distinctive designation of the preferred securities;
- the number of preferred securities issuable by the RGA trust;
- the annual distribution rate, or method of determining the rate, for
preferred securities issued by the RGA trust and the date or dates upon
which distributions will be payable; provided, however, that
distributions on the preferred securities will, subject to any deferral
provisions and any provisions for payment of defaulted distributions, be
payable on a quarterly basis to holders of the preferred securities as of
a record date in each quarter during which the preferred securities are
outstanding and any provisions relating to the resetting or adjustment of
the distribution rate;
- any right of the RGA trust to defer quarterly distributions on the
preferred securities as a result of an interest deferral right exercised
by us on the junior subordinated debt securities held by the RGA trust;
41
- whether distributions on preferred securities will be cumulative, and, in
the case of preferred securities having cumulative distribution rights,
the date or dates or method of determining the date or dates from which
distributions on preferred securities will be cumulative;
- the amount or amounts which will be paid out of the assets of the RGA
trust to the holders of preferred securities upon voluntary or
involuntary dissolution, winding-up or termination of the RGA trust;
- the obligation or option, if any, of the RGA trust to purchase or redeem
preferred securities and the price or prices at which, the period or
periods within which, and the terms and conditions upon which preferred
securities will be purchased or redeemed, in whole or in part, under this
obligation or option with the redemption price or formula for determining
the redemption price to be specified in the applicable prospectus
supplement;
- the voting rights, if any, of preferred securities in addition to those
required by law, including the number of votes per preferred security and
any requirement for the approval by the holders of preferred securities
as a condition to specified action or amendments to the amended and
restated trust agreement;
- the terms and conditions, if any, upon which junior subordinated debt
securities held by the RGA trust may be distributed to holders of
preferred securities;
- whether such preferred securities are convertible into our common stock,
and the terms of any such conversion, including whether we have the
option to convert such preferred securities into cash instead of common
stock;
- the title or designation and terms of any securities with which the
preferred securities are issued as a unit; and
- any other relevant terms, rights, preferences, privileges, limitations or
restrictions of preferred securities consistent with the amended and
restated trust agreement or applicable law.
All preferred securities offered by the prospectus will be guaranteed by us
to the extent set forth below under "Description of the Preferred Securities
Guarantees of RGA." The guarantee issued by us to each RGA trust, when taken
together with our obligations under the junior subordinated debt securities
issued to any RGA trust and under the applicable indenture and any applicable
supplemental indentures, and our obligations under each amended and restated
trust agreement, including the obligation to pay expenses of each RGA trust,
will provide a full and unconditional guarantee by us of amounts due on the
preferred securities issued by each RGA trust. The payment terms of the
preferred securities will be the same as the junior subordinated debt securities
issued to the applicable RGA trust by us.
Each amended and restated trust agreement authorizes the administrative
trustees to issue on behalf of the applicable trust one series of common
securities having terms, including distributions, redemption, voting and
liquidation rights, and restrictions that are established by the administrative
trustees in accordance with the amended and restated trust agreement or that are
otherwise set forth in the amended and restated trust agreement. The terms of
the common securities issued by each RGA trust will be substantially identical
to the terms of the preferred securities issued by the RGA trust. The common
securities will rank equally, and payments will be made proportionately, with
the preferred securities of that trust. However, if an event of default under
the amended and restated trust agreement of the RGA trust has occurred and is
continuing, the cash distributions and liquidation, redemption and other amounts
payable on the common securities will be subordinated to the preferred
securities in right of payment. The common securities will also carry the right
to vote and to appoint, remove or replace any of the trustees of the RGA trust.
RGA will own, directly or indirectly, all of the common securities of each RGA
trust.
The financial statements of any RGA trust that issues preferred securities
will be reflected in our consolidated financial statements with the preferred
securities shown as company-obligated mandatorily-redeemable preferred
securities of a subsidiary trust under "minority interest." We will include in a
footnote to our audited financial statements, statements that the applicable RGA
trust is wholly-owned by us and that the
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sole asset of the RGA trust is the junior subordinated debt securities,
indicating the principal amount, interest rate and maturity date of the junior
subordinated debt securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an event of default occurs, and is continuing, under the amended and
restated trust agreement of either RGA trust, the holders of the preferred
securities of that trust may rely on the property trustee to enforce its rights
as a holder of the subordinated debt securities against RGA. Additionally, those
who together hold a majority of the aggregate stated liquidation amount of an
RGA trust's preferred securities will have the right to:
- direct the time, method and place of conducting any proceeding for any
remedy available to the property trustee; or
- direct the exercise of any trust or power that the property trustee holds
under the amended and restated trust agreement, including the right to
direct the property trustee to exercise the remedies available to it as a
holder of the junior subordinated debt securities.
If such a default occurs and the event is attributable to RGA's failure to
pay interest or principal on the junior subordinated debt securities when due,
including any payment on redemption, and this debt payment failure is
continuing, a preferred securities holder of the trust may directly institute a
proceeding for the enforcement of this payment. Such a proceeding will be
limited, however, to enforcing the payment of this principal or interest only up
to the value of the aggregate liquidation amount of the holder's preferred
securities as determined after the due date specified in the applicable series
of junior subordinated debt securities. RGA will be subrogated to the holder's
rights under the applicable amended and restated trust agreement to the extent
of any payment it makes to the holder in connection with such a direct action,
and RGA may setoff against any such payment that it makes under the applicable
preferred securities guarantee.
The descriptions of the preferred securities in this prospectus and any
prospectus supplement are summaries of the material provisions of the applicable
amended and restated trust agreement. These descriptions do not restate those
agreements in their entirety. We urge you to read the applicable amended and
restated trust agreement because it, and not the summaries, defines your rights
as holders of the preferred securities. For more information, please review the
form of the applicable agreements, which will be filed with the SEC promptly
after the offering of preferred securities and will be available as described
under the heading "Where You Can Find More Information" beginning on page 2
above.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES OF RGA
Set forth below is a summary of information concerning the guarantees that
will be executed and delivered by us for the benefit of the holders, from time
to time, of preferred securities. Summaries of any other terms of any guarantee
that are issued will be set forth in the applicable prospectus supplement. Each
guarantee has been or will be qualified as an indenture under the Trust
Indenture Act. Unless otherwise specified in the applicable prospectus
supplement, The Bank of New York will act as the preferred securities guarantee
trustee. The terms of each guarantee will be set forth in the guarantee and will
include the terms made part of the guarantee by the Trust Indenture Act and will
be available as described under the heading "Where You Can Find More
Information" above. The following is a summary of the material terms of the
guarantees. You should refer to the provisions of the form of guarantee, a copy
of which has been or will be filed as an exhibit to the registration statement
of which this prospectus is a part, and the Trust Indenture Act. Each guarantee
will be held by the preferred securities guarantee trustee for the benefit of
the holders of the preferred securities of the applicable RGA trust.
Unless otherwise specified in the applicable prospectus supplement, we will
agree, to the extent set forth in each guarantee, to pay in full to the holders
of the preferred securities, the payments and distributions to be made with
respect to the preferred securities, except to the extent paid by the applicable
RGA trust, as and when due, regardless of any defense, right of set-off or
counterclaim which the RGA trust may have or assert. The following payments or
distributions with respect to the preferred securities, to the extent not paid
by the
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RGA trust and to the extent that such RGA trust has funds available for these
payments or distributions, will be subject to the guarantee:
- any accumulated and unpaid distributions that are required to be paid on
the preferred securities;
- the redemption price for any preferred securities called for redemption
by the RGA trust; and
- upon a voluntary or involuntary dissolution, winding-up or termination of
the RGA trust, other than in connection with the distribution of junior
subordinated debt securities to the holders of preferred securities in
exchange for preferred securities or the redemption of all of the
preferred securities upon maturity or redemption of the subordinated debt
securities, the lesser of
(i) the sum of the liquidation amount and all accrued and unpaid
distributions on the preferred securities to the date of payment, or
(ii) the amount of assets of the RGA trust remaining for distribution
to holders of the preferred securities in liquidation of the RGA trust.
We may satisfy our obligation to make a guarantee payment by making a
direct payment of the required amounts to the holders of preferred securities or
by causing the applicable RGA trust to pay the amounts to the holders.
Each guarantee will not apply to any payment of distributions except to the
extent the applicable RGA trust has funds available to make the payment. If we
do not make interest or principal payments on the junior subordinated debt
securities purchased by the RGA trust, the RGA trust will not pay distributions
on the preferred securities issued by the RGA trust and will not have funds
available to make the payments.
COVENANTS OF RGA
Unless otherwise specified in the applicable prospectus supplement, in each
guarantee of the payment obligations of an RGA trust with respect to preferred
securities, we will covenant that, so long as any preferred securities issued by
the RGA trust remain outstanding, if there has occurred any event which would
constitute an event of default under the guarantee or under the amended and
restated trust agreement of the RGA trust, then we will not:
- declare or pay any dividend on, make any other distributions on, or
redeem, purchase, acquire or make a liquidation payment regarding, any of
our capital stock, except:
(1) purchases or acquisitions of our capital stock in connection with
the satisfaction of our obligations under any employee or agent benefit
plans or the satisfaction of our obligations under any contract or security
outstanding on the date of the event requiring us to purchase our capital
stock;
(2) as a result of a reclassification of our capital stock or the
exchange or conversion of one class or series of our capital stock for
another class or series of our capital stock;
(3) the purchase of fractional interests in shares of our capital
stock in connection with the conversion or exchange provisions of our
capital stock or the security being converted or exchanged;
(4) dividends or distributions in our capital stock, or rights to
acquire our capital stock, or repurchases or redemptions of capital stock
solely from the issuance or exchange of capital stock; or
(5) redemptions or repurchases of any rights outstanding under a
shareholder rights plan;
- make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by us which rank junior
to the subordinated debt securities issued to the applicable RGA trust;
and
- make any guarantee payments regarding the foregoing, other than under a
guarantee of the payment obligations of an RGA trust with respect to
preferred securities.
44
MODIFICATION OF THE GUARANTEES; ASSIGNMENT
Except for any changes that do not adversely affect the rights of holders
of preferred securities, in which case no consent of the holders will be
required, each guarantee of the payment obligations of an RGA trust with respect
to preferred securities may be amended only with the prior approval of the
holders of at least a majority in aggregate liquidation amount of the
outstanding preferred securities of the RGA trust. The manner of obtaining any
approval of holders of the preferred securities will be set forth in an
accompanying prospectus supplement. All guarantees and agreements contained in a
guarantee of the obligations of an RGA trust with respect to preferred
securities will bind the successors, assigns, receivers, trustees and
representatives of RGA and will inure to the benefit of the holders of the
preferred securities of the applicable RGA trust then outstanding.
EVENTS OF DEFAULT
An event of default under a preferred securities guarantee will occur upon
our failure to perform any of our payment or other obligations under the
guarantee. The holders of a majority in aggregate liquidation amount of the
preferred securities to which the preferred securities guarantee relates will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the preferred securities guarantee trustee with
respect to the guarantee or to direct the exercise of any trust or power
conferred upon the preferred securities guarantee trustee under the guarantee.
If we have failed to make a guarantee payment under a guarantee, a record
holder of preferred securities to which the guarantee relates may directly
institute a proceeding against us for enforcement of the guarantee for the
payment to the record holder of the preferred securities to which the guarantee
relates of the principal of or interest on the applicable subordinated debt
securities on or after the respective due dates specified in the junior
subordinated debt securities, and the amount of the payment will be based on the
holder's proportionate share of the amount due and owing on all of the preferred
securities to which the guarantee relates. We have waived any right or remedy to
require that any action be brought first against the applicable RGA trust or any
other person or entity before proceeding directly against us. The record holder
in the case of the issuance of one or more global preferred securities
certificates will be The Depository Trust Company, or its nominee, acting at the
direction of the beneficial owners of the preferred securities.
We will be required to provide annually to the preferred securities
guarantee trustee a statement as to the performance of our obligations under
each outstanding preferred securities guarantee and as to any default in our
performance.
TERMINATION
Each preferred securities guarantee will terminate as to the preferred
securities issued by the applicable RGA trust:
- upon full payment of the liquidation value or redemption price of all
preferred securities of the RGA trust;
- upon distribution of the junior subordinated debt securities held by the
RGA trust to the holders of all of the preferred securities of the RGA
trust; or
- upon full payment of the amounts payable in accordance with the amended
and restated trust agreement of the RGA trust upon termination and
liquidation of the RGA trust.
Each preferred securities guarantee will continue to be effective or will
be reinstated, as the case may be, if at any time any holder of preferred
securities issued by the applicable RGA trust must restore payment of any sums
paid under the preferred securities or the preferred securities guarantee.
45
STATUS OF THE GUARANTEES
The preferred securities guarantees will constitute our unsecured
obligations and, unless otherwise indicated in an applicable prospectus
supplement, will rank as follows:
- subordinated and junior in right of payment to all of RGA's present and
future liabilities, including subordinated debt securities issued under
RGA's subordinated indenture and described above under "Description of
Debt Securities of RGA -- Subordination under the Subordinated Indenture
and the Junior Subordinated Indenture," except those liabilities made
equivalent by their terms;
- equivalently with:
(1) the most senior preferred or preference stock now or hereafter
issued by us and with any guarantee now or hereafter entered into by us in
respect of any preferred or preference stock of any of our affiliates;
(2) the applicable junior subordinated debt securities; and
(3) any other liabilities or obligations made equivalent by their
terms; and
- senior to our common stock and any preferred or preference stock or other
liabilities made equivalent or subordinate by their terms.
The terms of the preferred securities provide that each holder of preferred
securities by acceptance of the preferred securities agrees to the subordination
provisions and other terms of our guarantee relating to the preferred
securities.
Each preferred securities guarantee will constitute a guarantee of payment
and not of collection. This means that the guaranteed party may institute a
legal proceeding directly against us to enforce its rights under the guarantee
without instituting a legal proceeding against any other person or entity.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The preferred securities guarantee trustee, before the occurrence of a
default under a preferred securities guarantee, undertakes to perform only the
duties that are specifically set forth in the guarantee and, after a default
under a guarantee, will exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to this
provision, the preferred securities guarantee trustee is under no obligation to
exercise any of the powers vested in it by a preferred securities guarantee at
the request of any holder of preferred securities to which the guarantee relates
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred by the preferred securities guarantee trustee
in exercising any of its powers; but the foregoing shall not relieve the
trustee, upon the occurrence of an event of default under such guarantee, from
exercising the rights and powers vested in it by such guarantee.
EXPENSE AGREEMENT
We will, pursuant to an agreement as to expenses and liabilities entered
into by us and each RGA trust under its amended and restated trust agreement,
irrevocably and unconditionally guarantee to each person or entity to whom the
trust becomes indebted or liable, the full payment of any costs, expenses or
liabilities of the trust, other than obligations of the trust to pay to the
holders of the preferred securities or other similar interests in the trust the
amounts due to the holders pursuant to the terms of the preferred securities or
other similar interests, as the case may be. Third party creditors of the trust
may proceed directly against us under the expense agreement, regardless of
whether they had notice of the expense agreement.
GOVERNING LAW
The preferred securities guarantees will be governed by and construed in
accordance with the internal laws of the State of New York.
46
EFFECT OF OBLIGATIONS UNDER THE JUNIOR SUBORDINATED DEBT SECURITIES
AND THE PREFERRED SECURITIES GUARANTEES
As set forth in the amended and restated trust agreements of each RGA
trust, the sole purpose of the RGA trusts is to issue the preferred securities
and common securities evidencing undivided beneficial interests in the assets of
each of the trusts, and to invest the proceeds from such issuance and sale in
RGA's junior subordinated debt securities.
As long as payments of interest and other payments are made when due on the
junior subordinated debt securities held by the RGA trusts, such payments will
be sufficient to cover distributions and payments due on the preferred
securities and common securities because of the following factors:
- the aggregate principal amount of such junior subordinated debt
securities will be equal to the sum of the aggregate stated liquidation
amount of the preferred securities and common securities;
- the interest rate and the interest and other payment dates on such junior
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the preferred securities;
- RGA shall pay, and the trusts shall not be obligated to pay, directly or
indirectly, all costs, expenses, debt, and obligations of the trusts,
other than with respect to the preferred securities and common
securities; and
- the amended and restated trust agreement of each trust will further
provide that the trustees shall not take or cause or permit the trust to,
among other things, engage in any activity that is not consistent with
the purposes of the applicable trust.
Payments of distributions, to the extent funds for such payments are
available, and other payments due on the preferred securities, to the extent
funds for such payments are available, are guaranteed by RGA as and to the
extent set forth under "Description of the Preferred Securities Guarantees of
RGA." If RGA does not make interest payments on the junior subordinated debt
securities purchased by the applicable trust, it is expected that the applicable
trust will not have sufficient funds to pay distributions on the preferred
securities and the preferred securities guarantee will not apply, since the
preferred securities guarantee covers the payment of distributions and other
payments on the preferred securities only if and to the extent that RGA has made
a payment of interest or principal on the junior subordinated debt securities
held by the applicable trust as its sole asset. However, the preferred
securities guarantee, when taken together with RGA's obligations under the
junior subordinated debt securities and the junior subordinated indenture and
its obligations under the respective amended and restated trust agreements,
including its obligations to pay costs, expenses, debts and liabilities of the
trust, other than with respect to the preferred securities and common
securities, provide a full and unconditional guarantee, on a subordinated basis,
by RGA of amounts due on the preferred securities.
If RGA fails to make interest or other payments on the junior subordinated
debt securities when due, taking account of any extension period, the amended
and restated trust agreement provide a mechanism whereby the holders of the
preferred securities affected thereby, using the procedures described in any
accompanying prospectus supplement, may direct the property trustee to enforce
its rights under the junior subordinated debt securities. If a debt payment
failure has occurred and is continuing, a holder of preferred securities may
institute a direct action for payment after the respective due date specified in
the junior subordinated debt securities. In connection with such direct action,
RGA will be subrogated to the rights of such holder of preferred securities
under the amended and restated trust agreement to the extent of any payment made
by RGA to such holder of preferred securities in such direct action. RGA, under
the guarantee, acknowledges that the guarantee trustee shall enforce the
guarantee on behalf of the holders of the preferred securities. If RGA fails to
make payments under the guarantee, the guarantee provides a mechanism whereby
the holders of the preferred securities may direct the trustee to enforce its
rights thereunder. Any holder of preferred securities may institute a legal
proceeding directly against RGA to enforce the guarantee trustee's rights under
the guarantee without first instituting a legal proceeding against the trust,
the guarantee trustee, or any other person or entity.
47
RGA and each of the RGA trusts believe that the above mechanisms and
obligations, taken together, provide a full and unconditional guarantee by RGA
on a subordinated basis of payments due on the preferred securities. See
"Description of the Preferred Securities Guarantees of RGA."
Upon any voluntary or involuntary termination, winding-up or liquidation of
an RGA trust involving the liquidation of the junior subordinated debt
securities, the holders of the preferred securities will be entitled to receive,
out of assets held by such RGA trust, the liquidation distribution in cash. Upon
our voluntary or involuntary liquidation or bankruptcy, the property trustee, as
holder of the junior subordinated debt securities, would be a subordinated
creditor of ours. Therefore, the property trustee would be subordinated in right
of payment to all of our senior and subordinated debt, but is entitled to
receive payment in full of principal and interest before any of our shareholders
receive payments or distributions. Since we are the guarantor under the
preferred securities guarantees and have agreed to pay for all costs, expenses
and liabilities of the RGA trusts other than the obligations of the trusts to
pay to holders of the preferred securities the amounts due to the holders
pursuant to the terms of the preferred securities, the positions of a holder of
the preferred securities and a holder the junior subordinated debt securities
relative to our other creditors and to our shareholders in the event of
liquidation or bankruptcy are expected to be substantially the same.
PLAN OF DISTRIBUTION
We or any RGA trust may sell any of the securities being offered by this
prospectus in any one or more of the following ways from time to time:
- through agents;
- to or through underwriters;
- through dealers; and
- directly by us to purchasers.
The distribution of the securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
Agents designated by us or the applicable RGA trust may solicit offers to
purchase the securities from time to time. The prospectus supplement will name
any such agent involved in the offer or sale of the securities and will set
forth any commissions payable by us or the applicable RGA trust to such agent.
Unless otherwise indicated in such prospectus supplement, any such agent will be
acting on a reasonable best efforts basis for the period of its appointment. Any
such agent may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the securities so offered and sold.
If the securities are sold by means of an underwritten offering, we and the
applicable RGA trust will execute an underwriting agreement with an underwriter
or underwriters at the time an agreement for such sale is reached. A prospectus
supplement will be used by the underwriters to make resales of the securities to
the public and will set forth the names of the specific managing underwriter or
underwriters, as well as any other underwriters, and the terms of the
transaction, including commissions, discounts and any other compensation of the
underwriters and dealers, if any. If underwriters are utilized in the sale of
the securities, the securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriter at the time of sale. The securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the securities, unless
otherwise indicated in the prospectus supplement, the underwriting agreement
will provide that the obligations of the underwriters are subject to certain
conditions precedent and that the underwriters will be obligated to purchase all
such securities if any are purchased.
48
If a dealer is utilized in the sale of the securities, we or the applicable
RGA trust will sell such securities to the dealer as principal. The dealer may
then resell such securities to the public at varying prices to be determined by
such dealer at the time of resale. Any such dealer may be deemed to be an
underwriter, as such term is defined in the Securities Act, of the securities so
offered and sold. The prospectus supplement will set forth the name of the
dealer and the terms of the transaction.
We or the applicable RGA trust may directly solicit offers to purchase the
securities and may sell such securities directly to institutional investors or
others, who may be deemed to be underwriters within the meaning of the
Securities Act with respect to any resale thereof. The prospectus supplement
will describe the terms of any such sales.
We or the applicable RGA trust may determine the price or other terms of
the securities offered under this prospectus by use of an electronic auction. We
will describe how any auction will determine the price or any other terms, how
potential investors may participate in the auction and nature of the
underwriters' obligations in the related supplement to this prospectus.
Agents, underwriters and dealers may be entitled under relevant agreements
with us or the applicable RGA trust to indemnification by us or the applicable
RGA trust against certain liabilities, including liabilities under the
Securities Act, or to any contribution with respect to payments which such
agents, underwriters and dealers may be required to make.
Each series of securities will be a new issue with no established trading
market, other than the common stock which is listed on the New York Stock
Exchange. Any common stock sold pursuant to a prospectus supplement will be
listed on such exchange, subject to official notice of issuance. We may elect to
list any series of debt securities, preferred stock, depositary shares,
warrants, purchase contracts or units on an exchange, and the applicable RGA
trust may elect to list any series of preferred securities on an exchange, but
neither we nor the trusts will be obligated to do so. It is possible that one or
more underwriters may make a market in a series of the securities, but will not
be obligated to do so and may discontinue any market making at any time without
notice. Therefore, we can give no assurance as to the liquidity of the trading
market for the securities.
Agents, underwriters and dealers may be customers of, engage in
transactions with, or perform services for, us and our subsidiaries or an RGA
trust in the ordinary course of business.
We may enter into derivative or other hedging transactions with financial
institutions. These financial institutions may in turn engage in sales of common
stock to hedge their position, deliver this prospectus in connection with some
or all of those sales and use the shares covered by this prospectus to close out
any short position created in connection with those sales. We may also sell
shares of common stock short using this prospectus and deliver common stock
covered by this prospectus to close out such short positions, or loan or pledge
common stock to financial institutions that in turn may sell the shares of
common stock using this prospectus. We may pledge or grant a security interest
in some or all of the common stock covered by this prospectus to support a
derivative or hedging position or other obligations and, if we default in the
performance of our obligations, the pledgees or secured parties may offer and
sell the common stock from time to time pursuant to this prospectus.
The securities may also be offered and sold, if so indicated in the
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms, which we refer to as "remarketing firms," acting as
principals for their own accounts or as agents for us or the applicable RGA
trust. The prospectus supplement will identify any remarketing firm and will
describe the terms of its agreement, if any, with us or the applicable RGA trust
and its compensation. Remarketing firms may be deemed to be underwriters, as
such term is defined in the Securities Act, in connection with the securities
remarketed thereby. Under agreements which may be entered into with us or the
applicable RGA trust, we or the applicable RGA trust may be required to provide
indemnification or contribution to remarketing firms against certain civil
liabilities, including liabilities under the Securities Act. Remarketing firms
may also be customers of, engage in transactions with or perform services for us
and our subsidiaries or an RGA trust in the ordinary course of business.
49
If so indicated in the applicable prospectus supplement, we or the
applicable RGA trust may authorize agents, underwriters or dealers to solicit
offers by certain institutions to purchase the securities from us or the
applicable RGA trust at the public offering prices set forth in the applicable
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date or dates. The applicable prospectus
supplement will indicate the commission to be paid to underwriters, dealers and
agents soliciting purchases of the securities pursuant to contracts accepted by
us or the applicable RGA trust.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, James
E. Sherman, Esq., General Counsel and Secretary of RGA, will issue an opinion
about the legality of the common stock, preferred stock, depositary shares,
warrants, purchase contracts and units of RGA under Missouri law, and Bryan Cave
LLP, St. Louis, Missouri, will issue an opinion about the legality of the debt
securities of RGA and the preferred securities guarantees of RGA. Mr. Sherman is
paid a salary by RGA, is a participant in various employee benefit plans offered
by RGA to employees of RGA generally and owns and has options to purchase shares
of RGA common stock. John C. Danforth, a partner of Bryan Cave LLP, is on the
Board of Directors of MetLife, our majority shareholder. Unless otherwise
indicated in the applicable prospectus supplement, Richards, Layton & Finger,
P.A., our special Delaware counsel, will issue an opinion about the legality of
the trust preferred securities.
EXPERTS
The consolidated financial statements and the related financial statement
schedules as of and for the three-year period ended December 31, 2002
incorporated in this prospectus by reference from RGA's Current Report on Form
8-K dated and filed on August 25, 2003 have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
50
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities being registered, other than
underwriting discounts and commissions:
SEC Registration Fee........................................ $ 64,720
Accounting Fees and Expenses................................ $ 75,000
Legal Fees and Expenses..................................... $250,000
Printing and Engraving Expenses............................. $150,000
Trustee Fees................................................ $ 15,000
Miscellaneous............................................... $ 95,280
--------
Total............................................. $650,000
========
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 351.355(1) of the Revised Statutes of Missouri provides that a
corporation may indemnify a director, officer, employee or agent of the
corporation in any action, suit or proceeding other than an action by or in the
right of the corporation, against expenses (including attorney's fees),
judgments, fines and settlement amounts actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal action, had no reasonable
cause to believe his contact was unlawful. Section 351.355(2) provides that the
corporation may indemnify any such person in any action or suit by or in the
right of the corporation against expenses (including attorneys' fees) and
settlement amounts actually and reasonably incurred by him in connection with
the defense or settlement of the action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, except that he may not be indemnified in respect of any matter
in which he has been adjudged liable for negligence or misconduct in the
performance of his duty to the corporation, unless authorized by the court.
Section 351.355(3) provides that a corporation may indemnify any such person
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the action, suit or proceeding if he has been successful
in defense of such action, suit or proceeding and if such action, suit or
proceeding is one for which the corporation may indemnify him under Section
351.355(1) or (2). Section 351.355(7) provides that a corporation shall have the
power to give any further indemnity to any such person, in addition to the
indemnity otherwise authorized under Section 351.355, provided such further
indemnity is either (i) authorized, directed or provided for in the articles of
incorporation of the corporation or any duly adopted amendment thereof or (ii)
is authorized, directed or provided for in any by-law or agreement of the
corporation which has been adopted by a vote of the stockholders of the
corporation, provided that no such indemnity shall indemnify any person from or
on account of such person's conduct which was finally adjudged to have been
knowingly fraudulent, deliberately dishonest or willful misconduct.
The Second Restated Articles of Incorporation of RGA filed as Exhibit 3.1
to this Registration Statement contain provisions indemnifying its directors,
officers, employees and agents to the extent authorized specifically by Sections
351.355(1), (2) (3) and (7). RGA has entered into indemnification contracts with
the officers and directors of RGA. The contracts provide that RGA under certain
circumstances may self-insure against directors' and officers' liabilities now
insured under the policy of insurance referred to below and will provide
indemnity to the fullest extent permitted by law against all expenses (including
attorneys' fees), judgments, fines and settlement amounts, paid or incurred in
any action or proceeding, including any act on behalf of RGA, on account of
their service as a director or officer of RGA, any subsidiary of RGA or any
other company or enterprise when they are serving in such capacities at the
II-1
request of RGA, excepting only cases where the conduct of such person is
adjudged to be knowingly fraudulent, deliberately dishonest or willful
misconduct.
Directors or officers of RGA who are directors or officers of MetLife or
its affiliates may also be entitled to indemnification pursuant to the charter
documents of such companies or under the provisions of agreements with such
companies providing indemnification to them since they serve as directors or
officers of RGA at the request of MetLife or its affiliates, as the case may be.
Such individuals may also be covered by directors' and officers' liability
insurance policies of MetLife or its affiliates, as the case may be.
The forms of Underwriting Agreement to be filed as Exhibits 1.1 to 1.6 to
this Registration Statement will provide for the mutual indemnification of RGA
and any Underwriters, their respective controlling persons, directors and
certain of their officers, against certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
Metropolitan Life Insurance Company, an affiliate of MetLife, Inc.
maintains a policy of insurance under which the directors and officers of RGA
are insured, subject to the limits of the policy, against certain losses, as
defined in the policy, arising from claims made against such directors and
officers by reason of any wrongful acts, as defined in the policy, in their
respective capacities as directors or officers.
Under the amended and restated trust agreement of each trust, RGA will
agree to indemnify each of the administrative trustee of such trust (or any
predecessor trustee for such trust), and to hold harmless such administrative
trustee against any loss, damage, claims, liability or expense incurred without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of such trust agreement, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties under such trust
agreement.
ITEM 16. EXHIBITS
(a) Exhibits
1.1 Form of Underwriting Agreement (Debt).*
1.2 Form of Underwriting Agreement (Equity or Depositary
Shares).*
1.3 Form of Underwriting Agreement (Preferred Securities).*
1.4 Form of Underwriting Agreement (Purchase Contracts).*
1.5 Form of Underwriting Agreement (Units).*
1.6 Form of Underwriting Agreement (Warrants).*
3.1 Second Restated Articles of Incorporation of RGA
(incorporated by reference to Exhibit 3.1 to Post-Effective
Amendment No. 2 to the Registration Statements on Form S-3/A
(File Nos. 333-55304, 333-55304-01 and 333-55304-02), filed
on September 6, 2001).
3.2 ByLaws, as amended (incorporated by reference to the
registrant's quarterly report on Form 10-Q for the quarter
ended September 30, 2000 (File No. 1-11848)), at the
corresponding exhibit.
4.1 Senior Indenture, dated as of December 19, 2001, between RGA
and The Bank of New York, as Trustee.
4.2 Form of Subordinated Indenture.
4.3 Junior Subordinated Indenture, dated as of December 18,
2001, between RGA and The Bank of New York, as Trustee.
4.4 Form of Purchase Contract Agreement and Units (including
form of related security certificate).*
4.5 Form of Pledge Agreement for Purchase Contract and Units.*
4.6 Certificate of Trust of RGA Capital Trust III.
4.7 Trust Agreement of RGA Capital Trust III.
4.8 Certificate of Trust of RGA Capital Trust IV.
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4.9 Trust Agreement of RGA Capital Trust IV.
4.10 Form of Amended and Restated Trust Agreement of RGA Capital Trust III (including the form of preferred
securities).*
4.11 Form of Amended and Restated Trust Agreement of RGA Capital Trust IV (including the form of preferred
securities).*
4.12 Form of Preferred Securities Guarantee Agreement (incorporated by reference to Exhibit 4.15 to the
Registrant's registration statement on Form S-3 (No. 333-55304), filed with the SEC on February 9,
2001).
4.13 Form of Senior Debt Security.*
4.14 Form of Subordinated Debt Security.*
4.15 Form of Junior Senior Debt Security.*
4.16 Form of Preferred Stock -- Any amendment to RGA's Articles of Incorporation authorizing the creation of
any series of Preferred Stock or Depositary Shares representing such shares of Preferred Stock setting
forth the rights, preferences and designations thereof will be filed as an exhibit subsequently included
or incorporated by reference herein.
4.17 Form of Deposit Agreement for Depositary Shares (including form of depositary receipt).*
4.18 Form of Warrant Agreement of RGA (including form of warrant certificate).*
4.19 Form of Unit Agreement of RGA (including form of unit certificate)*
5.1 Opinion of James E. Sherman, Esq.
5.2 Opinion of Richards, Layton & Finger, P.A.
5.3 Opinion of Bryan Cave LLP.
12.1 Computation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to Combined Fixed Charges and
Preference Dividends.
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of James E. Sherman, Esq. (contained in Exhibit 5.1).
23.3 Consent of Richards, Layton & Finger, P.A. (contained in Exhibit 5.2).
23.4 Consent of Bryan Cave LLP (contained in Exhibit 5.3).
24.1 Power of Attorney (included on signature page).
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Senior Trustee, as
Trustee under the Senior Indenture.
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Subordinated Trustee, as
Trustee under the Subordinated Indenture.**
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as
Trustee under the Junior Subordinated Indenture.
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as
Guarantee Trustee of the Preferred Securities Guarantee of RGA for the benefit of the holders of
Preferred Securities of RGA Capital Trust III.
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as
Guarantee Trustee of the Preferred Securities Guarantee of RGA for the benefit of the holders of the
Preferred Securities of RGA Capital Trust IV.
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as
Property Trustee under the Amended and Restated Trust Agreement of RGA Capital Trust III.
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York, as
Property Trustee under the Amended and Restated Trust Agreement of RGA Capital Trust IV.
- ---------------
* Indicates document to be filed as an exhibit to a report on Form 8-K or Form
10-Q pursuant to Item 601 of Regulation S-K and incorporated herein by
reference.
** To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended.
II-3
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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 Securities Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a
20 percent 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) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with the Securities and Exchange Commission
by the registrants pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Reinsurance Group of America, Incorporated's annual report pursuant to Section
13(a) or 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 registrants pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in said
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants 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 registrants will, unless in
the opinion of their respective counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
(d) If the securities registered are to be offered at competitive bidding,
the undersigned registrants hereby undertake: (1) to use their respective best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the Act, and relating to
the securities offered at competitive bidding, as contained in the registration
statement, together with any supplements thereto, and (2) to file an amendment
to the registration statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the issuer after the opening
of bids, of a prospectus relating to the securities offered at competitive
bidding, unless no further public offering of such securities by the issuer and
no reoffering of such securities by the purchasers is proposed to be made.
(e) The undersigned registrants hereby undertake:
(1) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(f) The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee under subsection (a)
of Section 310 of the Trust Indenture Act (the "Act") in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Reinsurance
Group of America, Incorporated certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in St. Louis, Missouri, on August 25,
2003.
REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: /s/ A. GREIG WOODRING
------------------------------------
A. Greig Woodring
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Jack B. Lay and James E. Sherman,
and each of them (with full power of each to act alone), severally, as his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and her and to execute in his or her
name, place and stead (individually and in any capacity stated below) any and
all amendments to this Registration Statement (including post-effective
amendments), and any additional registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended, for the same offering
contemplated by this Registration Statement, and all documents and instruments
necessary or advisable in connection therewith, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (or any other governmental regulatory
authority), each of said attorneys-in-fact and agents to have power to act with
or without the others and to have full power and authority to do and to perform
in the name and on behalf of each of the undersigned every act whatsoever
necessary or advisable to be done in the premises as fully and to all intents
and purposes as any of the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents and/or any
of them, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this report has
been signed by the following persons on behalf of the registrant in the
capacities indicated and on the dates indicated:
SIGNATURES TITLE DATE
---------- ----- ----
/s/ STEWART G. NAGLER Chairman of the Board and August 25, 2003
- -------------------------------------- Director
Stewart G. Nagler
/s/ A. GREIG WOODRING President, Chief Executive August 25, 2003
- -------------------------------------- Officer and Director
A. Greig Woodring
/s/ J. CLIFF EASON Director August 25, 2003
- --------------------------------------
J. Cliff Eason
/s/ STUART I. GREENBAUM Director August 25, 2003
- --------------------------------------
Stuart I. Greenbaum
II-6
SIGNATURES TITLE DATE
---------- ----- ----
/s/ JOSEPH A. REALI Director August 25, 2003
- --------------------------------------
Joseph A. Reali
/s/ WILLIAM A. PECK, M.D. Director August 25, 2003
- --------------------------------------
William A. Peck, M.D.
/s/ ALAN C. HENDERSON Director August 25, 2003
- --------------------------------------
Alan C. Henderson
/s/ JACK B. LAY Executive Vice President and August 25, 2003
- -------------------------------------- Chief Financial Officer
Jack B. Lay (Principal Financial and
Accounting Officer)
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, RGA Capital
Trust III and RGA Capital Trust IV certify that they have reasonable grounds to
believe that they meet all of the requirements for filing on Form S-3 and have
duly caused this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in St. Louis, Missouri, on August 25,
2003.
RGA CAPITAL TRUST III
By: Reinsurance Group of America,
Incorporated,
as Depositor
By: /s/ A. GREIG WOODRING
----------------------------------
A. Greig Woodring
President and Chief Executive
Officer
RGA CAPITAL TRUST IV
By: Reinsurance Group of America,
Incorporated,
as Depositor
By: /s/ A. GREIG WOODRING
----------------------------------
A. Greig Woodring
President and Chief Executive
Officer
II-8
EXHIBIT INDEX
1.1 Form of Underwriting Agreement (Debt).*
1.2 Form of Underwriting Agreement (Equity or Depositary
Shares).*
1.3 Form of Underwriting Agreement (Preferred Securities).*
1.4 Form of Underwriting Agreement (Purchase Contracts).*
1.5 Form of Underwriting Agreement (Units).*
1.6 Form of Underwriting Agreement (Warrants).*
3.1 Second Restated Articles of Incorporation of RGA
(incorporated by reference to Exhibit 3.1 to Post-Effective
Amendment No. 2 to the Registration Statements on Form S-3/A
(File Nos. 333-55304, 333-55304-01 and 333-55304-02), filed
on September 6, 2001).
3.2 ByLaws, as amended (incorporated by reference to the
registrant's quarterly report on Form 10-Q for the quarter
ended September 30, 2000 (File No. 1-11848)), at the
corresponding exhibit.
4.1 Senior Indenture, dated as of December 19, 2001, between RGA
and The Bank of New York, as Trustee.
4.2 Form of Subordinated Indenture.
4.3 Junior Subordinated Indenture, dated as of December 18,
2001, between RGA and The Bank of New York, as Trustee.
4.4 Form of Purchase Contract Agreement and Units (including
form of related security certificate).*
4.5 Form of Pledge Agreement for Purchase Contract and Units.*
4.6 Certificate of Trust of RGA Capital Trust III.
4.7 Trust Agreement of RGA Capital Trust III.
4.8 Certificate of Trust of RGA Capital Trust IV.
4.9 Trust Agreement of RGA Capital Trust IV.
4.10 Form of Amended and Restated Trust Agreement of RGA Capital
Trust III (including the form of preferred securities).*
4.11 Form of Amended and Restated Trust Agreement of RGA Capital
Trust IV (including the form of preferred securities).*
4.12 Form of Preferred Securities Guarantee Agreement
(incorporated by reference to Exhibit 4.15 to the
Registrant's registration statement on Form S-3 (No.
333-55304), filed with the SEC on February 9, 2001).
4.13 Form of Senior Debt Security.*
4.14 Form of Subordinated Debt Security.*
4.15 Form of Junior Senior Debt Security.*
4.16 Form of Preferred Stock -- Any amendment to RGA's Articles
of Incorporation authorizing the creation of any series of
Preferred Stock or Depositary Shares representing such
shares of Preferred Stock setting forth the rights,
preferences and designations thereof will be filed as an
exhibit subsequently included or incorporated by reference
herein.
4.17 Form of Deposit Agreement for Depositary Shares (including
form of depositary receipt).*
4.18 Form of Warrant Agreement of RGA (including form of warrant
certificate).*
4.19 Form of Unit Agreement of RGA (including form of unit
certificate).*
5.1 Opinion of James E. Sherman, Esq.
5.2 Opinion of Richards, Layton & Finger, P.A.
5.3 Opinion of Bryan Cave LLP.
12.1 Computation of Ratios of Earnings to Fixed Charges and
Ratios of Earnings to Combined Fixed Charges and Preference
Dividends.
23.1 Consent of Deloitte and Touche LLP.
23.2 Consent of James E. Sherman, Esq. (contained in Exhibit
5.1).
23.3 Consent of Richards, Layton & Finger, P.A. (contained in
Exhibit 5.2).
23.4 Consent of Bryan Cave LLP (contained in Exhibit 5.3).
24.1 Power of Attorney (included on signature page).
25.1 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Senior Trustee, as Trustee under the
Senior Indenture.
25.2 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Subordinated Trustee, as Trustee under
the Subordinated Indenture.**
25.3 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under
the Junior Subordinated Indenture.
25.4 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Guarantee
Trustee of the Preferred Securities Guarantee of RGA for the
benefit of the holders of Preferred Securities of RGA
Capital Trust III.
25.5 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Guarantee
Trustee of the Preferred Securities Guarantee of RGA for the
benefit of the holders of the Preferred Securities of RGA
Capital Trust IV.
25.6 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Property
Trustee under the Amended and Restated Trust Agreement of
RGA Capital Trust III.
25.7 Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Property
Trustee under the Amended and Restated Trust Agreement of
RGA Capital Trust IV.
- ---------------
* Indicates document to be filed as an exhibit to a report on Form 8-K or
Form 10-Q pursuant to Item 601 of Regulation S-K and incorporated herein by
reference.
** To be filed separately pursuant to Section 305(b)(2) of the Trust Indenture
Act of 1939, as amended.
EXHIBIT 4.1
REINSURANCE GROUP OF AMERICA, INCORPORATED
To
THE BANK OF NEW YORK
as Trustee
----------
Senior Indenture
Dated as of December 19, 2001
TABLE OF CONTENTS
Page
----
ARTICLE I.......................................................................................1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......................1
Section 1.1. Definitions......................................................1
Section 1.2. Compliance Certificates and Opinions............................13
Section 1.3. Form of Documents Delivered to Trustee..........................13
Section 1.4. Notices, etc., to Trustee and Company...........................14
Section 1.5. Notice to Holders; Waiver.......................................14
Section 1.6. Conflict with Trust Indenture Act...............................15
Section 1.7. Effect of Headings and Table of Contents........................15
Section 1.8. Successors and Assigns..........................................15
Section 1.9. Separability Clause.............................................15
Section 1.10. Benefits of Indenture..........................................16
Section 1.11. Governing Law..................................................16
Section 1.12. Legal Holidays.................................................16
Section 1.13. No Security Interest Created...................................16
Section 1.14. Liability Solely Corporate.....................................16
ARTICLE II.....................................................................................17
DEBT SECURITY FORMS..........................................................17
Section 2.1. Forms Generally.................................................17
Section 2.2. Form of Trustee's Certificate of Authentication.................17
Section 2.3. Securities in Global Form.......................................18
ARTICLE III....................................................................................18
THE DEBT SECURITIES..........................................................18
Section 3.1. Amount Unlimited; Issuable in Series............................18
Section 3.2. Denominations...................................................23
Section 3.3. Execution, Authentication, Delivery and Dating..................23
Section 3.4. Temporary Debt Securities; Exchange of Temporary Global Notes
for Definitive Bearer Securities; Global Notes Representing
Registered Securities................................................25
Section 3.5. Registration, Transfer and Exchange.............................31
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities...........33
Section 3.7. Payment of Interest; Interest Rights Preserved..................34
Section 3.8. Cancellation....................................................36
Section 3.9. Computation of Interest.........................................37
Section 3.10. Currency of Payments in Respect of Debt Securities.............37
Section 3.11. Judgments......................................................40
i
Section 3.12. Exchange Upon Default..........................................41
ARTICLE IV.....................................................................................41
SATISFACTION AND DISCHARGE...................................................41
Section 4.1. Satisfaction and Discharge of Indenture.........................41
Section 4.2. Application of Trust Money......................................43
ARTICLE V......................................................................................43
REMEDIES.....................................................................43
Section 5.1. Events of Default...............................................43
Section 5.2. Acceleration of Maturity; Rescission and Annulment..............44
Section 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee..............................................................45
Section 5.4. Trustee May File Proofs of Claim................................46
Section 5.5. Trustee May Enforce Claims Without Possession of Debt
Securities...........................................................47
Section 5.6. Application of Money Collected..................................47
Section 5.7. Limitation on Suits.............................................48
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest.........................................................48
Section 5.9. Restoration of Rights and Remedies..............................49
Section 5.10. Rights and Remedies Cumulative.................................49
Section 5.11. Delay or Omission Not Waiver...................................49
Section 5.12. Control by Holders.............................................49
Section 5.13. Waiver of Past Defaults........................................50
Section 5.14. Undertaking for Costs..........................................50
Section 5.15. Waiver of Stay or Extension Laws...............................50
ARTICLE VI.....................................................................................51
THE TRUSTEE..................................................................51
Section 6.1. Certain Duties and Responsibilities.............................51
Section 6.2. Notice of Defaults..............................................52
Section 6.3. Certain Rights of Trustee.......................................53
Section 6.4. Not Responsible for Recitals or Issuance of Debt Securities.....54
Section 6.5. May Hold Debt Securities........................................54
Section 6.6. Money Held in Trust.............................................54
Section 6.7. Compensation and Reimbursement..................................54
Section 6.8. Disqualification; Conflicting Interests.........................55
Section 6.9. Corporate Trustee Required; Eligibility.........................61
Section 6.10. Resignation and Removal; Appointment of Successor..............61
Section 6.11. Acceptance of Appointment by Successor.........................62
Section 6.12. Merger, Conversion, Consolidation or Succession to Business....64
ii
Section 6.13. Preferential Collection of Claims Against Company..............64
Section 6.14. Appointment of Authenticating Agent............................68
ARTICLE VII....................................................................................69
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................69
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.......69
Section 7.2. Preservation of Information; Communication to Holders...........70
Section 7.3. Reports by Trustee..............................................71
Section 7.4. Reports by Company..............................................73
ARTICLE VIII...................................................................................74
CONCERNING THE HOLDERS.......................................................74
Section 8.1. Acts of Holders.................................................74
Section 8.2. Proof of Ownership; Proof of Execution of Instruments by
Holder...............................................................74
Section 8.3. Persons Deemed Owners...........................................75
Section 8.4. Revocation of Consents; Future Holders Bound....................75
ARTICLE IX.....................................................................................76
HOLDERS' MEETINGS............................................................76
Section 9.1. Purposes of Meetings............................................76
Section 9.2. Call of Meetings by Trustee.....................................76
Section 9.3. Call of Meetings by Company or Holders..........................77
Section 9.4. Qualifications for Voting.......................................77
Section 9.5. Regulations.....................................................77
Section 9.6. Voting..........................................................78
ARTICLE X......................................................................................78
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.........................78
Section 10.1. Company May Consolidate, etc., Only on Certain Terms...........78
Section 10.2. Successor Corporation Substituted..............................79
ARTICLE XI.....................................................................................79
SUPPLEMENTAL INDENTURES......................................................79
Section 11.1. Supplemental Indentures Without Consent of Holders.............79
Section 11.2. Supplemental Indentures With Consent of Holders................81
Section 11.3. Execution of Supplemental Indentures...........................82
Section 11.4. Effect of Supplemental Indentures..............................82
iii
Section 11.5. Conformity with Trust Indenture Act............................82
Section 11.6. Reference in Debt Securities to Supplemental Indentures........82
Section 11.7. Notice of Supplemental Indenture...............................83
ARTICLE XII....................................................................................83
COVENANTS....................................................................83
Section 12.1. Payment of Principal, Premium and Interest.....................83
Section 12.2. Officer's Certificate as to Default............................83
Section 12.3. Maintenance of Office or Agency................................83
Section 12.4. Money for Debt Securities; Payments To Be Held in Trust........85
Section 12.5. Corporate Existence............................................86
Section 12.6. Purchase of Debt Securities by Company.........................86
Section 12.7. Waiver of Certain Covenants....................................86
ARTICLE XIII...................................................................................87
REDEMPTION OF DEBT SECURITIES................................................87
Section 13.1. Applicability of Article.......................................87
Section 13.2. Election to Redeem; Notice to Trustee..........................87
Section 13.3. Selection by Trustee of Debt Securities to Be Redeemed.........87
Section 13.4. Notice of Redemption...........................................88
Section 13.5. Deposit of Redemption Price....................................89
Section 13.6. Debt Securities Payable on Redemption Date.....................89
Section 13.7. Debt Securities Redeemed in Part...............................90
ARTICLE XIV....................................................................................90
SINKING FUNDS................................................................90
Section 14.1. Applicability of Articles......................................90
Section 14.2. Satisfaction of Mandatory Sinking Fund Payments with Debt
Securities...........................................................91
Section 14.3. Redemption of Debt Securities for Sinking Fund.................91
ARTICLE XV.....................................................................................93
DEFEASANCE...................................................................93
Section 15.1. Applicability of Article.......................................93
Section 15.2. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations..........................................................93
Section 15.3. Deposited Moneys and U.S. Government Obligations to Be Held In
Trust................................................................95
Section 15.4. Repayment to Company...........................................95
iv
ARTICLE XVI....................................................................................96
CONVERSION...................................................................96
Section 16.1. Applicability; Conversion Privilege............................96
Section 16.2. Conversion Procedure; Conversion Price; Fractional Shares......96
Section 16.3. Adjustment of Conversion Price for Common Stock................97
Section 16.4. Consolidation or Merger of the Company........................100
Section 16.5. Notice of Adjustment..........................................101
Section 16.6. Notice in Certain Events......................................101
Section 16.7. Company to Reserve Stock; Registration; Listing...............102
Section 16.8. Taxes on Conversion...........................................103
Section 16.9. Conversion After Record Date..................................103
Section 16.10. Company Determination Final..................................103
Section 16.11. Trustee's Disclaimer.........................................104
ARTICLE XVII..................................................................................104
EXTENDED INTEREST PERIOD....................................................104
Section 17.1. Extension of Interest Payment Period..........................104
Section 17.2. Notice of Extension...........................................104
Section 17.3. Limitation on Transactions....................................104
Section 17.4. Applicability of Article......................................104
v
INDENTURE dated as of December 19, 2001, between REINSURANCE GROUP
OF AMERICA, INCORPORATED, a Missouri corporation (hereinafter called the
"Company"), having its principal executive office at 1370 Timberlake Manor
Parkway, Chesterfield, Missouri 63017 and THE BANK OF NEW YORK (hereinafter
called the "Trustee"), having its principal corporate trust office at 101
Barclay Street, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles or as provided with respect to any series of Debt
Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term "generally
accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder with respect to any series
of Debt Securities, shall mean such as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of
Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by
such other entity as have been approved by a significant segment of the
accounting profession which are in effect as of the issuance date of
such series of Debt Securities; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article Six, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.1.
"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" as used with respect to any Person shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise, provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by"
and "under common control with" shall have correlative meanings.
"Authenticating Agent" has the meaning specified in Section
6.14.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least
once a day, and customarily published for at least five days in each
calendar week, and of general circulation in the place in connection
with which the term is used or in the financial community of such
place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day in such city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.1, which is
payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any
Coupons.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act
hereunder or any director or directors and/or officer or officers of
the
2
Company to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.1.
"CEDEL" means Cedel S.A.
"Closing Price" of the Common Stock shall mean the last
reported sale price of such stock (regular way) as shown on the
Composite Tape of the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, in case no such sale takes place on such day,
the average of the closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange
on which such stock is listed or admitted to trading), or, if it is not
listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices as reported in The Nasdaq
Stock Market, or if such stock is not so reported, the average of the
closing bid and asked prices as furnished by any member of the National
Association of Securities Dealers, Inc., selected from time to time by
the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" shall mean the class of Common Stock, par value
$.01 per share, of the Company authorized at the date of this Indenture
as originally signed, or any other class of stock resulting from
successive changes or reclassifications of such Common Stock, and in
any such case including any shares thereof authorized after the date of
3
this Indenture, and any other shares of stock of the Company which do
not have any priority in the payment of dividends or upon liquidation
over any other class of stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer,
the Chief Operating Officer or a Vice President and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Component Currency" has the meaning specified in Section
3.10(i).
"Conversion Agent" means any Person authorized by the Company
to receive Debt Securities to be converted into Common Stock on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may
at any time from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section
3.10(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii) the
ECU to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or (iii) any Currency unit other than the ECU to
be used for the purposes for which it was established. Notwithstanding
any term herein, or in any supplement hereto, to the contrary, in no
instance shall the Trustee be under any duty or obligation to determine
or monitor whether a Conversion Event has occurred. Upon receipt by the
Trustee of an Officers' Certificate of the Company certifying to the
effect that a Conversion Event has occurred, the Trustee shall be
entitled to rely exclusively thereon without independent investigation
on its part.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per share
of Common Stock at which the Debt Securities of such series are so
4
convertible pursuant to Section 3.1 with respect to such series, as the
same may be adjusted from time to time in accordance with Section 16.3.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at 101 Barclay Street, New
York, New York 10286, Attention: Corporate Trust Department.
"Corporation" includes corporations, associations, companies
and business trusts.
"Coupon" means any interest coupon appertaining to any Debt
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Company for
purposes of Section 3.10; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of the Company and
the Trustee at the time of such appointment, require such agent to make
the determinations required by this Indenture by a method consistent
with the method provided in this Indenture for the making of such
decision or determination.
"Current Market Price" on any date shall mean the average of
the daily Closing Prices per share of Common Stock for any thirty (30)
consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not
commence more than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 16.3(3), the "Current
Market Price" of the Common Stock shall mean the average of the daily
Closing Prices per share of Common Stock for the five (5) consecutive
Trading Days ending on the date of the distribution referred to in
Section 16.3(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
5
"Discharged" has the meaning specified in Section 15.2.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code (or any successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts of
principal, premium, if any, and any interest respectively (on an
aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section 3.2
in the relevant Currency or Currency unit), payable on the basis of
such Market Exchange Rate sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer or any Assistant Treasurer
of the Company.
"Extended Interest Period" has the meaning specified in
Section 3.1.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
6
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the
values of the currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without
limitation, any temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon,
the bearer thereof.
"Indenture" means this instrument as originally executed, or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities as
established pursuant to Section 3.1.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only on a certain date,
means interest payable after such date, and, when used with respect to
a Bearer Security, includes any additional amounts payable on such
Bearer Security, if so provided pursuant to Section 3.1.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant Currency unit and
Dollars or such Foreign Currency calculated by the method specified
pursuant to Section 3.1 for the securities of the relevant series, (ii)
for any conversion of Dollars into any Foreign Currency, the noon (New
York City time) buying rate for such Foreign Currency for [cable
transfers] quoted in New York City as certified for customs purposes by
the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks
7
located in either New York City, London or any other principal market
for Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent,
if any, or if there shall not be a Currency Determination Agent, then
the Trustee, shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of
the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such
Currency or Currency unit in question, or such other quotations as the
Currency Determination Agent or the Trustee, as the case may be, shall
deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more than one
market for dealing in any Currency or Currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency or Currency unit shall be that upon which a
nonresident issuer of securities designated in such Currency or
Currency unit would purchase such Currency or Currency unit in order to
make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt Security or an installment
of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption, repayment or repurchase at the option of the Holder
thereof or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company)
and who shall be satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose 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
8
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Debt Securities and any Coupons thereto pertaining;
provided, however, that if such Debt Securities are to be redeemed
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made and the date for such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company; provided, however,
that in determining whether the Holders of the requisite principal
amount of Debt Securities Outstanding have performed any Act hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding (provided, that
in connection with any offer by the Company or any obligor to purchase
Debt Securities, Debt Securities tendered by a Holder shall be
Outstanding until the date of purchase), except that, (i) in
determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities which the Trustee knows to be so owned
shall be so disregarded and (ii) the foregoing shall not apply at any
time when all of the Outstanding Debt Securities are owned by the
Company, the Trustee and/or any such Affiliate. Debt Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Debt Securities
and that the pledgee is not the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act hereunder,
the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose 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 of the Maturity
thereof pursuant to Section 5.2 and the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant to
Section 3.10(k).
"Overdue Rate" when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.1.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"permanent Global Note" shall have the meaning given such term
in Section 3.4(b).
9
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.1.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.6 in lieu of a mutilated, lost, destroyed or
stolen Debt Security or a Debt Security to which a mutilated, lost,
destroyed or stolen Coupon appertains shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Debt Security or
the Debt Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section
3.1, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium, if
any, and accrued and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.1 which is registered as to principal
and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for that purpose pursuant to Section 3.1 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any vice president, the secretary, any assistant secretary or any
assistant vice president or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above
10
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5(a).
"Senior Indebtedness" means the principal of (and premium, if
any) and unpaid interest on (i) Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, for money borrowed (other than the
Indebtedness evidenced by the Debt Securities of any series), unless in
the instrument creating or evidencing the same or pursuant to which the
same is outstanding it is provided that such Indebtedness is not senior
or prior in right of payment to the Debt Securities, and (ii) renewals,
extensions, modifications and refundings of any such Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Specified Amount" has the meaning specified in Section
3.10(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security or the Coupon,
if any, representing such installment of interest, as the date on which
the principal of such Debt Security or such installment of principal,
premium or interest is due and payable.
"Subsidiary" means, with respect to any specified Person, (i)
any corporation, association, or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such Person
or one or more Subsidiaries of such Person (or any combination
thereof).
"Temporary Global Note" shall have the meaning given such term
in Section 3.4(b).
"Trading Day" shall mean, with respect to the Common Stock, so
long as the Common Stock is listed or admitted to trading on the New
York Stock Exchange, a day on which the New York Stock Exchange is open
for the transaction of business, or, if the Common Stock is not
11
listed or admitted to trading on the New York Stock Exchange, a day on
which the principal national securities exchange on which the Common
Stock is listed is open for the transaction of business, or, if the
Common Stock is not so listed or admitted for trading on any national
securities exchange, a day on which The Nasdaq Stock Market is open for
the transaction of business.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" 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 11.5.
"United States" means the United States of America (including
the States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to
Section 3.1 until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Depositary" shall mean or include each Person who is then a U.S.
Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities
of any series shall mean the U.S. Depositary with respect to the Debt
Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 15.2.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after the title "Vice President."
12
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.2) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information
13
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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
SECTION 1.5. NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers in The City of New York and, if Debt Securities of such
series are then listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, in a
daily newspaper in London or Luxembourg or in such other city or cities
specified pursuant to Section 3.1 or in any Debt Security on Business Days, the
first such publication to be not earlier than the earliest date and not later
than two Business Days prior to the latest date prescribed for the giving of
such notice; provided, however, that, in any case, any notice to Holders of
Floating Rate Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 3.1, shall be
sufficiently given if given in the manner specified pursuant to Section 3.1.
14
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
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 on such waiver. 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, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 1.6. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.8. SUCCESSORS AND ASSIGNS.
The Company shall have the right at all times to assign any of its
respective rights or obligations under the Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for such obligations. All covenants
and agreements in this Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their permitted
successors and assigns, whether so expressed or not.
SECTION 1.9. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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SECTION 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.11. GOVERNING LAW.
This Indenture, the Debt Securities and the Coupons shall be governed
by and construed in accordance with the internal laws of the State of New York.
SECTION 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
SECTION 1.13. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities or Coupons, express
or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and
in effect in any jurisdiction where property of the Company or its Subsidiaries
is or may be located.
SECTION 1.14. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any shareholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, shareholder, officer or director, past,
present or future, of the Company (or any incorporator, shareholder, officer or
director of any such predecessor or successor corporation), either directly or
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indirectly through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Debt Securities or Coupons or to be implied herefrom or
therefrom; and that any such personal liability is hereby expressly waived and
released as a condition of, and as part of the consideration for, the execution
of this Indenture and the issue of Debt Securities; provided, however, that
nothing herein or in the Debt Securities or Coupons contained shall be taken to
prevent recourse to and the enforcement of the liability, if any, of any
shareholder or subscriber to capital stock upon or in respect of the shares of
capital stock not fully paid.
ARTICLE II.
DEBT SECURITY FORMS
SECTION 2.1. FORMS GENERALLY.
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.3 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.1, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, 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 Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
--------------------------------
--------------------------------
By:
-----------------------------
Authorized Signatory
SECTION 2.3. SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.2.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE III.
THE DEBT SECURITIES
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 3.3)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
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(2) the aggregate principal amount of such series of Debt
Securities and any limit, on the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 3.4, 3.5, 3.6, 11.6 or
13.7);
(3) the percentage of the principal amount at which the Debt
Securities of such series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity or upon
redemption thereof or the method by which such portion shall be
determined;
(4) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates or
the method by which such date or dates will be determined, on which the
principal of (and premium, if any, on) the Debt Securities of such
series are or may be payable (which, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the series
issued from time to time);
(5) the rate or rates (which may be variable or fixed) at
which the Debt Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which such interest, if any, shall accrue or the method by
which such date or dates shall be determined (which, in either case or
both, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), subject to the right, if any
such right is provided pursuant to this Section 3.1, of the Company to
defer or extend an Interest Payment Date and the duration of such
extension or deferral (an "Extended Interest Period"), and the Regular
Record Dates, if any, for the interest payable on such Interest Payment
Dates and the notice, if any, to Holders regarding the determination
of interest, the manner of giving such notice, the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months and any conditions or contingencies as to the
payment of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee (in the case of Registered
Securities) where the principal of (and premium, if any) and interest
on Debt Securities of the series shall be payable; the extent to which,
or the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid, if other than in the manner
provided in Section 3.7; the extent, if any, to which the provisions of
the last sentence of Section 12.1 shall apply to the Debt Securities of
the series; and the manner in which any principal of, or premium, if
any, on, any Global Note will be paid, if other than as set forth
elsewhere herein and whether any Global Note will require any notation
to evidence payment of principal or interest;
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(7) the obligation, if any, of the Company to redeem, repay,
purchase or offer to purchase Debt Securities of the series pursuant to
any mandatory redemption, sinking fund or analogous provisions or upon
other conditions or at the option of the Holder thereof and the period
or periods within which or the dates on which, the prices at which and
the terms and conditions upon which the Debt Securities of the series
shall be redeemed, repaid, purchased or offered to be purchased, in
whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series at its option and the period or periods
within which, or the date or dates on which, the price or prices at
which, and the terms and conditions upon which such Debt Securities may
be redeemed, if any, in whole or in part, at the option of the Company
or otherwise;
(9) if the coin or Currency in which the Debt Securities shall
be issuable is in Dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof
(except as provided in Section 3.4);
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(11) provisions, if any, for the defeasance or discharge of
certain of the Company's obligations with respect to Debt Securities of
the series;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto,
whether such Bearer Securities of the series may be exchanged for
Registered Securities of the series, as provided in Section 3.5(b) or
otherwise and the circumstances under which and the place or places at
which any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or
tax redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.4(b) shall
apply and, if so, such other procedure, and if the procedure set forth
in Section 3.4(b) shall apply, the forms of certifications to be
delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies
in which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the
Debt Securities of the series may be made, and the particular
provisions applicable thereto and, if applicable, the amount of Debt
Securities of the series which entitles the Holder
20
of a Debt Security of the series or its proxy to one vote for purposes
of Section 9.5;
(15) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Debt Securities are denominated or payable without such election, in
addition to or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid
if such election is made;
(16) the date as of which any Debt Securities of the series
shall be dated, if other than as set forth in Section 3.3;
(17) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index, including, but not limited to,
an index based on a Currency or Currencies other than that in which the
Debt Securities are denominated or payable, or any other type of index,
the manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(19) the designation of the original Currency Determination
Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.1;
(22) any addition to, or modification or deletion of, any
Events of Default, covenants or term of the subordination provided for
with respect to Debt Securities of the series;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Debt Security
in global form (representing all of the Outstanding Bearer Securities
of the series) payable in respect of any Interest Payment Date prior to
the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Debt Security held for
its account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment
21
received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date, (y) the
terms upon which interests in such temporary Debt Security in global
form may be exchanged for interests in a permanent Global Note or for
definitive Debt Securities of the series and the terms upon which
interests in a permanent Global Note, if any, may be exchanged for
definitive Debt Securities of the series and (z) the cities and the
Authorized Newspapers designated for the purposes of giving notices to
Holders;
(24) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Notes and, in
such case, the U.S. Depositary or any Common Depositary for such Global
Note or Notes; and if the Debt Securities of the series are issuable
only as Registered Securities, the manner in which and the
circumstances under which Global Notes representing Debt Securities of
the series may be exchanged for Registered Securities in definitive
form, if other than, or in addition to, the manner and circumstances
specified in Section 3.4(c);
(25) the designation, if any, of any depositaries, trustees
(other than the applicable Trustee), Paying Agents, Authenticating
Agents, Security Registrars (other than the Trustee) or other agents
with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and
terms of such certificates, documents or conditions;
(27) whether the Debt Securities of such series will be
convertible into shares of Common Stock and, if so, the terms and
conditions, which may be in addition to or in lieu of the provisions
contained in the Indenture, upon which such Debt Securities will be so
convertible, including the conversion price and the conversion period;
(28) the portion of the principal amount of the Debt
Securities which will be payable upon declaration of acceleration of
the maturity thereof, if other than the principal amount thereof;
(29) the nature, content and date for reports by the Company
to the holders of the Debt Securities; and
(30) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto,
22
and except as may otherwise be provided in or pursuant to such Board Resolution
and (subject to Section 3.3) set forth in such Officers' Certificate, or in any
such indenture supplemental hereto. All Debt Securities of any one series need
not be issued at the same time, and unless otherwise provided, a series may be
reopened for issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in or
pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.1 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities such as interest rate, Stated Maturity, date of issuance
and date
23
from which interest, if any, shall accrue. If any Debt Security shall be
represented by a permanent Global Note, then, for purposes of this Section and
Section 3.4, the notation of a beneficial owner's interest therein upon original
issuance of such Debt Security or upon exchange of a portion of a temporary
Global Note shall be deemed to be delivery in connection with the original
issuance of such beneficial owner's interest in such permanent Global Note.
Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons for interest then matured
have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(1) the authentication order furnished by the Company to the
Trustee in connection with the authentication and delivery of such Debt
Securities and Coupons conforms to the requirements of this Indenture
and constitutes sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons
are consistent with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities and Coupons have been established in a supplemental
indenture, the execution and delivery of such supplemental indenture
has been duly authorized by all necessary corporate action of the
Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(4) the execution and delivery of such Debt Securities and
Coupons have been duly authorized by all necessary corporate action of
the Company and such Debt Securities and Coupons have been duly
executed by the Company and, assuming due authentication by the Trustee
and delivery by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms,
entitled to the benefit of the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and subject to such other exceptions as counsel shall
request and as to which the Trustee shall not reasonably object; and
24
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of
Debt Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or permanent or other definitive
Bearer Security in global form) shall be dated as of the date of original
issuance of the first Debt Security of such series to be issued, except as
otherwise provided pursuant to Section 3.1 with respect to the Bearer Securities
of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.4. TEMPORARY DEBT SECURITIES; EXCHANGE OF TEMPORARY GLOBAL
NOTES FOR DEFINITIVE BEARER SECURITIES; GLOBAL NOTES REPRESENTING REGISTERED
SECURITIES.
(a) Pending the preparation of definitive Registered Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities may determine,
as conclusively evidenced by their execution of such Registered Securities.
Every such temporary Registered Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, representing such of the Outstanding Debt Securities of such series
as shall be specified therein.
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Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.5 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 3.3.
Until so exchanged, the temporary Registered Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.1, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note shall
be surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, at such address as the Trustee may specify and following such
surrender, the Trustee shall (1) endorse the temporary Global Note to reflect
the reduction of its principal amount by an equal aggregate principal amount of
such Debt Security, (2) endorse the applicable permanent Global Note, if any, to
reflect
26
the initial amount, or an increase in the amount of Debt Securities represented
thereby, (3) manually authenticate such definitive Debt Securities (including
any permanent Global Note), (4) deliver such definitive Debt Securities to the
Holder thereof or, if such definitive Debt Security is a permanent Global Note,
deliver such permanent Global Note to the Common Depositary to be held outside
the United States for the accounts of the Euro-clear Operator or CEDEL, as the
case may be, for credit to the respective accounts at Euro-clear Operator or
CEDEL, as the case may be, designated by or on behalf of the beneficial owners
of such Debt Securities (or to such other accounts as they may direct) and (5)
redeliver such temporary Global Note to the Common Depositary, unless such
temporary Global Note shall have been canceled in accordance with Section 3.8
hereof; provided, however, that, unless otherwise specified in such temporary
Global Note, upon such presentation by the Common Depositary, such temporary
Global Note shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by the Euro-clear Operator, as to the portion of such
temporary Global Note held for its account then to be exchanged for definitive
Debt Securities (including any permanent Global Note), and a certificate dated
the Exchange Date or a subsequent date and signed by CEDEL, as to the portion of
such temporary Global Note held for its account then to be exchanged for
definitive Debt Securities (including any permanent Global Note), each
substantially in the form set forth in Exhibit B to this Indenture. Each
certificate substantially in the form of Exhibit B hereto of the Euro-clear
Operator or CEDEL, as the case may be, shall be based on certificates of the
account holders listed in the records of the Euro-clear Operator or CEDEL, as
the case may be, as being entitled to all or any portion of the applicable
temporary Global Note. An account holder of the Euro-clear Operator or CEDEL, as
the case may be, desiring to effect the exchange of an interest in a temporary
Global Note for an interest in definitive Debt Securities (including any
permanent Global Note) shall instruct the Euro-clear Operator or CEDEL, as the
case may be, to request such exchange on its behalf and shall deliver to the
Euro-clear Operator or CEDEL, as the case may be, a certificate substantially in
the form of Exhibit A hereto and dated no earlier than 10 days prior to the
Exchange Date. Until so exchanged, temporary Global Notes shall in all respects
be entitled to the same benefits under this Indenture as definitive Debt
Securities (including any permanent Global Note) of the same series
authenticated and delivered hereunder, except as to payment of interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global
27
Note, as the case may be, may be exchanged, in whole or from time to time in
part, for definitive Debt Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary Global
Note or such permanent Global Note, an equal aggregate principal amount of
definitive Debt Securities of the same series of authorized denominations and of
a like Stated Maturity and with like terms and conditions, as the portion of
such temporary Global Note or such permanent Global Note to be exchanged, which,
unless the Debt Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as contemplated by Section 3.1, shall
be in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that definitive Bearer Securities shall be delivered in exchange for a
portion of the temporary Global Note or the permanent Global Note only in
compliance with the requirements of the second preceding paragraph. On or prior
to the forty-fifth day following receipt by the Trustee of such notice with
respect to a Debt Security, or, if such day is not a Business Day, the next
succeeding Business Day, the temporary Global Note or the permanent Global Note,
as the case may be, shall be surrendered by the Common Depositary to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Debt Securities without charge
following such surrender, upon the request of the Euro-clear Operator or CEDEL,
as the case may be, and the Trustee shall (1) endorse the applicable temporary
Global Note or the permanent Global Note to reflect the reduction of its
principal amount by the aggregate principal amount of such Debt Security, (2)
cause the terms of such Debt Security and Coupons, if any, to be entered on a
definitive Debt Security, (3) manually authenticate such definitive Debt
Security, and (4) if a Bearer Security is to be delivered, deliver such
definitive Debt Security to an address outside the United States to the
Euro-clear Operator or CEDEL, as the case may be, for or on behalf of the
beneficial owner thereof, in exchange for a portion of such temporary Global
Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only to an address outside
the United States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date upon delivery by the
Euro-clear Operator or CEDEL to the Trustee of a certificate or certificates
substantially in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts
28
of the Persons who are the beneficial owners of such temporary Global Note on
such Interest Payment Date and who have each delivered to the Euro-clear
Operator or CEDEL, as the case may be, a certificate substantially in the form
set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.4.
With respect to Exhibits A and B to this Indenture, the Company may, in
its discretion and if required or desirable under applicable law or as set forth
in any Board Resolution or Supplemental Indenture with respect to any Series of
Debt Securities, substitute one or more other forms of such exhibits for such
exhibits, eliminate the requirement that any or all certificates be provided, or
change the time that any certificate may be required, provided that such
substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section 3.1 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.5,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the
29
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the Company shall appoint a successor U.S. Depositary with respect
to the Debt Securities of such series. If a successor U.S. Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such condition, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Debt Securities of such series, will
authenticate and deliver, Registered Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such series in exchange for such Global Note
or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.1 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Note and the aggregate principal
amount of Registered Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange
30
for a Global Note pursuant to this subsection (c) shall be registered in such
names and in such authorized denominations as the U.S. Depositary for such
Global Note, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Debt
Securities to the Persons in whose names such Debt Securities are so registered.
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars or the terms of any series of
Debt Securities may provide otherwise.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.1, the
provisions of this Section 3.5(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.1 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender
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of such missing Coupon or Coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to any Paying Agent any such missing Coupon
in respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that except
as otherwise provided in Section 12.3, interest represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and of a like Stated
Maturity and with like terms and conditions after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture. The Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Security or Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.1, in no event
may Registered Securities, including Registered Securities received in exchange
for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.4(b) or 3.6. 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, transfer or exchange of Debt
Securities, other than
32
those expressly provided in this Indenture to be made at the Company's own
expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption under Section 13.3 and
ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office, or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security or any Coupon, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Debt Security or Coupon
has been acquired by a bona fide purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding, and, in the case of a Coupon Security,
with such Coupons attached thereto that neither gain nor loss in interest shall
result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.3, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1 or except as otherwise provided in this
Section 3.6, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security or Coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally
33
and proportionately with any and all other Debt Securities or Coupons of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.1 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.1 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.1, by wire transfer to an account designated by the Registered Holder.
(b) Interest on any Coupon Security which is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the
Holder of the Coupon which has matured on such Interest Payment Date upon
surrender of such Coupon on such Interest Payment Date at the Corporate Trust
Office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.1.
Interest on any Bearer Security (other than a Coupon Security) which is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such Interest Payment Date at the
Corporate Trust Office of the Trustee or at such other Place of Payment
maintained by the Company outside the United States specified pursuant to
Section 3.1.
Unless otherwise specified pursuant to Section 3.1, at the direction of
the Holder of any Bearer Security or Coupon payable in Dollars, payment on such
Bearer Security or Coupon will be made by check drawn on a bank in The City of
Boston or, if agreeable to the Trustee, by wire transfer to a Dollar account
maintained by such Holder outside the United States. If such payment at the
offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.1, at the
direction of the Holder of any Bearer Security or Coupon payable in a Foreign
Currency, payment on such Bearer Security or Coupon will be made by a check
drawn on a bank outside the United States or by wire transfer to an appropriate
account maintained by such Holder outside the United States. Except as provided
in this paragraph, no payment on any
34
Bearer Security or Coupon will be made by mail to an address in the United
States or by wire transfer to an account in the United States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency unit in
which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.1 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which date shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the Holders of such Registered Securities at their
addresses as they appear in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
35
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.5
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.8. CANCELLATION.
Unless otherwise specified pursuant to Section 3.1 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Registered Securities and
matured Coupons so delivered shall be promptly canceled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be canceled or held
for reissuance. Bearer Securities and unmatured Coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.5
or in replacement of mutilated, lost, stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related Coupons pursuant to Section 3.6. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the Trustee
for cancellation any Debt Securities or Coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously authenticated
hereunder which the Company has not issued, and all Debt Securities or Coupons
so delivered shall be promptly canceled by the Trustee. No Debt Securities or
Coupons shall be authenticated in lieu of or in exchange for any Debt Securities
or Coupons canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities and Coupons held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Debt Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.4 hereof and substantially in the form of Exhibit
B hereto, to be given by the Euro-clear Operator or CEDEL, have been duly
presented to the Trustee by the Euro-clear Operator or CEDEL, as the case may
be. Permanent Global Notes shall not be destroyed until exchanged in full for
definitive Debt Securities or until payment thereon is made in full.
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SECTION 3.9. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.10. CURRENCY OF PAYMENTS IN RESPECT OF DEBT SECURITIES.
(a) Except as otherwise specified pursuant to Section 3.1 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (c) below or the Holders of which have
not made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.1 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below (and provided that in no instance may such
election be made after a defeasance pursuant to Article XV or during the
continuance of an Event of Default), to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election in the applicable
supplemental indenture by delivering to the Trustee a written election, to be in
form and substance satisfactory to the Trustee, not later than the close of
business on the Election Date immediately preceding the applicable payment date.
If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change or election may
be made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or notice of
redemption has been given by the Company pursuant to Article Thirteen). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee by the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.1, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered
37
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (c) above. If the election referred to in
paragraph (c) above has been provided for pursuant to Section 3.1 and if at
least one Holder has made such election, then, on the second Business Day
preceding each payment date, the Company will deliver to the Trustee an Exchange
Rate Officer's Certificate in respect of the Currency payments to be made on
such payment date. The Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (c)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent, if any, or, if there
shall not be a Currency Determination Agent, then by the Trustee, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (c)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Currency Determination Agent, and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Currency Determination Agent, and subject to the provisions of paragraph (i)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
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A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more Currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more Currencies with appropriate
Dollar equivalents at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including but not
limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such Currency unit, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at
the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the earlier of (i) the seventh
Business Day immediately preceding any payment date or (ii) the record
date with respect to any payment date, and with respect to the Maturity
shall mean the record date (if within 16 or fewer days prior to the
Maturity) immediately preceding the Maturity, and with respect to any
series of Debt Securities whose record date immediately preceding the
Maturity is more than 16 days prior to the Maturity or any series of
Debt Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign Currency,
the Company, after learning thereof, will
39
immediately give written notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 1.5 to the
Holders) specifying the Conversion Date. In the event of a Conversion Event with
respect to the ECU or any other Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 1.5 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders of
Outstanding Debt Securities may perform an Act which requires that a specified
percentage of the Outstanding Debt Securities of all series perform such Act and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably,
the principal of (and premium, if any) and interest on the Outstanding Debt
Securities denominated in a Foreign Currency will be the amount in Dollars based
upon the Market Exchange Rate for Debt Securities of such series, as of the date
for determining whether the Holders entitled to perform such Act have performed
it, or as of the date of such decision or determination by the Trustee, as the
case may be.
(l) The Company hereby appoints itself as the initial Currency
Determination Agent and the Company shall be entitled to remove such agent at
any time; provided, however, that such removal shall not be effective and the
agent may not resign until a successor has been appointed by the Company and the
successor has accepted such appointment. The Trustee is under no duty or
obligation to serve in the capacity of Currency Determination Agent.
SECTION 3.11. JUDGMENTS.
If for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency which, when converted at the
Market Exchange Rate as in effect on the date of payment or distribution, is the
amount then due hereunder or under such Debt Security. Any amount due from the
Company under this Section 3.11 shall be due as a separate debt
40
and is not to be affected by or merged into any judgment being obtained for any
other sums due hereunder or in respect of any Debt Security. In no event,
however, shall the Company be required to pay more in the Currency or Currency
unit due hereunder or under such Debt Security at the Market Exchange Rate as in
effect when payment is made than the amount of Currency stated to be due
hereunder or under such Debt Security so that in any event the Company's
obligations hereunder or under such Debt Security will be effectively maintained
as obligations in such Currency, and the Company shall be entitled to withhold
(or be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion over the amount due and payable on the date of
payment or distribution.
SECTION 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.1, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either
(A) all Debt Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than (i) Debt
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6, (ii) Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived under Section 3.5,
(iii) Coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 13.6, and (iv) Debt Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter
41
repaid to the Company or discharged from such trust, as provided in
Section 12.4) have been delivered to the Trustee for cancellation; or
(B) all Debt Securities and the Coupons, if any, of such
series not theretofore delivered to the Trustee for cancellation,
(i) have become due and payable by reason of the
making of a notice of redemption or otherwise, or
(ii) will become due and payable at their Stated
Maturity within one year,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.1, or if not so specified in the case
of (i), (ii) or (iii) of this subclause (B), has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in United States Dollars,
non-callable government securities, or a combination thereof, in such
amounts as will be (except as otherwise provided pursuant to Section
3.1 or 3.10) sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on such Debt
Securities not delivered to the Trustee for cancellation for principal,
premium, if any and accrued interest to the date of such deposit (in
the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 12.4, shall
survive. If, after the deposit referred to in Section 4.1 has been made, (x) the
Holder of a Debt Security is entitled to, and does, elect pursuant to Section
3.10(c), to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.1 was made, or (y) if a Conversion Event occurs with
respect to the Currency in which the deposit was made or elected to be received
by the Holder pursuant to Section 3.10(c), then the indebtedness represented by
such Debt Security shall be fully discharged to the extent that the deposit made
with respect to such Debt Security shall be converted into the Currency in which
such payment is made.
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SECTION 4.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE V.
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt Securities
of any series means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Debt
Security or any payment with respect to the Coupons, if any, of such
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (and premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been
included in this Indenture solely for the benefit of Debt Securities of
a series other than 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 or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
43
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, custodian, 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 90
consecutive days; or
(6) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other
similar law, or the consent by it to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, 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
its 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
(7) any other Event of Default provided with respect to Debt
Securities of that series pursuant to Section 3.1.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities or indexed
securities, such portion of the principal amount of such Discount Securities as
may be specified in the terms of such Discount Securities or indexed securities)
of all the Debt Securities of such series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) plus
accrued and unpaid interest (and premium, if payable) shall become immediately
due and payable. Upon payment of such amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Sections
3.1 or 3.10), all obligations of the Company in respect of the payment of
principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Section 3.1 or 3.10) sufficient to
pay
44
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to
any Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed
therefor in such Debt Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest on each Debt Security of such series or upon
overdue payments on any Coupons of such series at the
Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; provided, however, that all sums payable
under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Debt Security or any payment with respect to any
Coupons when such interest or payment becomes due and payable and such
default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) 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 Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such
45
Debt Securities or matured Coupons, for the principal (and premium, if any) and
interest, if any, and, to the extent that payment of such interest shall be
legally enforceable, interest upon the overdue principal (and premium, if any)
and upon overdue installments of interest, at the Overdue Rate; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount 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 decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration 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,
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are 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 5.2) (and premium, if any) and interest owing
and unpaid in respect of the Debt Securities and Coupons 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
such Debt Securities and Coupons allowed in such judicial proceeding,
and
46
(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, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such 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 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or Coupons of any
series in respect of which money has been 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 6.7.
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
or Coupons of such series, in respect of which or for the benefit of
which such money has been collected ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debt Securities or Coupons for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
47
SECTION 5.7. LIMITATION ON SUITS.
No Holder of any Debt Security or Coupon 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 for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series,
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder,
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request,
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding, and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.7, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7) interest on such Debt Security or Coupon on the
respective Stated Maturity or Maturities expressed in such Debt Security or
Coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment and interest thereon, and such
right shall not be impaired without the consent of such Holder.
48
SECTION 5.9. 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 the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
49
SECTION 5.13. WAIVER OF PAST DEFAULTS.
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 any such series waive any past default hereunder with
respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the
Debt Securities of such series; or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee 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 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
SECTION 5.15. 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
50
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 VI.
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) 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 provisions 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 with respect to Debt Securities of any
series has occurred and is continuing, the Trustee shall, with respect to the
Debt Securities of such series, exercise such of the rights and powers vested in
it by this Indenture, 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:
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) 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;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series 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;
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(4) the Trustee is under no obligation or duty to pay interest
on or invest any funds deposited with it except as specifically
provided in this Indenture, and all investment activities undertaken by
the Trustee, if any, shall be at and pursuant to the written
instruction of the Company; and
(5) the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of 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.
(e) Any opinion required or permitted to be delivered to the Trustee
hereunder may be addressed and delivered to the entity serving as Trustee
hereunder solely in its individual capacity and not in its capacity as Trustee,
fiduciary or as representative of the holders of such Debt Securities and
Coupons issued by the Company.
SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder 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 the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and provided, further, that in the case of any default of the
character specified in Section 5.1(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
52
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a) of this Indenture.
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(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, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any
53
agent (including any agent appointed pursuant to Section 3.10(j)) or attorney
appointed with due care by it hereunder.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
SECTION 6.5. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or Coupons, and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.6. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for (i) interest on any money received by it hereunder except as otherwise
agreed with the Company or (ii) losses resulting from currency fluctuations or
any investments made pursuant to 6.1(c)(4).
SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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);
(2) except as otherwise expressly provided herein, to
reimburse the trustee in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and
54
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Debt Securities and
Coupons, if any, upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of amounts due on the Debt
Securities and Coupons.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture.
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series, then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as hereinafter defined) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of such
90-day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below, resign with respect to the Debt Securities
of such series, and the Company shall take prompt steps to have a successor
appointed, in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit to all Holders of Debt Securities of such series notice
of such failure.
Notice given pursuant to this Section 6.8(b) shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a) of this Indenture.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Debt Securities of any series,
if there shall exist an Event of Default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) with respect to such
Debt Securities and:
55
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Debt Securities of any series other than that series
or is trustee under another indenture under which any other securities,
or certificates of interest or participation in any other securities,
of the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debt Securities issued under this Indenture, provided that there shall
be excluded from the operation of this paragraph this Indenture with
respect to the Debt Securities of any series other than that series and
any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally and such other indenture
or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c)
of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to the Debt
Securities of such series and one or more other series or the
provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make
it necessary, in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Debt Securities of such
series and such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Debt Securities of such series
and such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debt Securities of
such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Company, or of an underwriter (other than the Trustee itself)
for the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or an
executive officer, or both, of the Company but may not be at the same
time an executive officer of both the Trustee and the Company; (ii) if
and so long as
56
the number of directors of the Trustee in office is more than nine, one
additional individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and (iii) the
Trustee may be designated by the Company or by any underwriter for the
Company to act in the capacity of transfer agent, registrar, custodian,
paying agent, fiscal agent, escrow agent, or depositary or in any other
similar capacity, or, subject to the provisions of paragraph (l) of
this subsection, to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Debt Securities issued under this Indenture
and securities issued under any other indenture under which the Trustee
is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default or
any anniversary of such Event of Default while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of not more
than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after
the
57
dates of any such Event of Default and annually in each succeeding year
that such Event of Default continues, the Trustee shall make a check of
its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of (or premium, if any) or interest on any of the
Debt Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; provided, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as of
which
58
the determination is made, has purchased from the Company with a view
to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time,
or has participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a participation in
the direct or indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate,
an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities specified
in this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
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(3) The term "amount." when used with regard to securities
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of
or interest on any Debt Security of any series, or in the payment of any sinking
or purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that:
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
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(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia 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, 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. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner and to the extent provided in Section 1.5 to the Holders of
Debt Securities of such series. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, each such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring
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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 claim, if any,
provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any 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 other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates, but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Debt Securities and
of the Coupons, if any, and the holders of other indenture securities (as
defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
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(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings or
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal
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or State bankruptcy, insolvency or other similar law, but after crediting
thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee and the Holders and the holders
of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the holders
of other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claim, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the Lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
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(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) The acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Debt Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
(3) 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 and payable upon demand.
(4) 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.
(5) The term "Company" means any obligor upon the Debt
Securities.
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SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent, except that only the Trustee may authenticate Debt
Securities upon original issuance and pursuant to Section 3.6 hereof. Such
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 $10,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which 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 all series of Debt Securities 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 for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
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 6.14 with respect to one or more
or all series of Debt Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of Debt Securities of such series in
the manner and to the extent provided in Section 1.5. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
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herein. The Trustee for the Debt Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services, and the Trustee shall be entitled to be reimbursed for such
payment, subject to the provisions of Section 6.7. The Authenticating Agent
for the Debt Securities of any series shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee for such
series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
As Trustee
By:
----------------------------------------
As Authenticating Agent
By:
----------------------------------------
Authorized Signatory
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as 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 Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.1 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
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The Company shall also be required to furnish to the Trustee at all
such times set forth above all 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 Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in Section
7.1 upon receipt of a new list so furnished, destroy any information received by
it as Paying Agent (if so acting) hereunder upon delivering to itself as
Trustee, not earlier than 45 days after an Interest Payment Date, a list
containing the names and addresses of the Holders obtained from such information
since the delivery of the next previous list, if any, destroy any list delivered
to itself as Trustee which was compiled from information received by it as
Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Debt Security 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 Debt Securities of a
particular series (in which case the applicants must hold Debt Securities of
such series) or with all Holders of Debt Securities with respect to their rights
under this Indenture or under the Debt Securities 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 Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt Securities, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses
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appear in the information preserved at the time by the Trustee in accordance
with Section 7.2(a), 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 the Holders of Debt Securities of such
series or all Holders, as the case may be, 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.
(c) Every Holder of Debt Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with Section 7.2(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing of any material
pursuant to a request made under Section 7.2(b).
SECTION 7.3. REPORTS BY TRUSTEE.
(a) Within 60 days after January 15 of each year, commencing January
15, 2000, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.3, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.8(c) of this
Indenture;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to
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report such advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Outstanding Debt
Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other obligor on
the Debt Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.3 shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
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(3) except in the cases of reports pursuant to subsection (b)
of this Section 7.3, to each Holder of a Debt Security of any series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.2(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed with the Company and the Company shall file such report
with each stock exchange upon which any Debt Securities of such series are
listed, with the Commission and also with the Company. The Company will notify
the Trustee when any series of Debt Securities are listed on any stock exchange.
SECTION 7.4. REPORTS BY COMPANY.
Unless otherwise specified with respect to a particular series of Debt
Securities pursuant to Section 3.1, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended.
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall continue to file with the Commission and
provide the Trustee and the Holders of each series of Debt Securities
with, without cost to each Holder, (a) within 90 days after the end of
each fiscal year, annual reports on Form 10-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in such successor or comparable form); (b) within
45 days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or comparable
form); and (c) promptly from time to time after the occurrence of an
event required to be therein reported, such other reports on Form 8-K
(or any successor or comparable form) containing the information
required to be contained therein (or required in any successor or
comparable form); provided, however, that the Company shall not be
obligated to file such reports with the Commission if the Commission
does not permit such filings. The Company will in all cases, without
cost to each recipient, provide copies of such information to the
Holders of the Debt Securities of each series and, if they are not
permitted to file such reports with the Commission, shall make
available information to prospective purchasers and to securities
analysts and broker-dealers upon their request;
(2) file with the 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
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Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the manner
and to the extent provided in Section 7.3, 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 (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE VIII.
CONCERNING THE HOLDERS
SECTION 8.1. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy 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. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
SECTION 8.2. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS BY
HOLDER.
The ownership of Registered Securities of any series shall be proved by
the Security Register for such series or by a certificate of the Security
Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding
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(1) another certificate bearing a later date issued in respect of the same
Bearer Security shall be produced, (2) such Bearer Security shall be produced by
some other person, (3) such Bearer Security shall have been registered on the
Security Register, if, pursuant to Section 3.1, such Bearer Security can be so
registered, or (4) such Bearer Security shall have been canceled or paid.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer
authorized to take acknowledgements of deeds, that the person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
SECTION 8.3. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.7) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt Security or Coupon.
SECTION 8.4. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the Holders of the
percentage in aggregate
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principal amount of the Outstanding Debt Securities specified in this Indenture
in connection with such Act, any Holder of a Debt Security the number, letter or
other distinguishing symbol of which is shown by the evidence to be included in
the Debt Securities the Holders of which have consented to such Act may, by
filing written notice with the Trustee at the Corporate Trust Office and upon
proof of ownership as provided in Section 8.2, revoke such Act so far as it
concerns such Debt Security. Except as aforesaid, any such Act taken by the
Holder of any Debt Security shall be conclusive and binding upon such Holder
and, subject to the provisions of Section 5.8, upon all future Holders of such
Debt Security and all past, present and future Holders of Coupons, if any,
appertaining thereto and of any Debt Securities and Coupons issued on transfer
or in lieu thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
Coupons or such other Debt Securities or Coupons.
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article Nine for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
SECTION 9.2. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 9.1, to be held at such time
or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.5. Such
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notice shall be given not less than 10 days nor more than 90 days prior to the
date fixed for the meeting.
SECTION 9.3. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding Debt
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 10 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
SECTION 9.5. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee for
any series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.3, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 3.1) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
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meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
SECTION 9.6. VOTING.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
taken, and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.2. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting, and one
of the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into or wind up
into (whether or not the Company is the surviving corporation) or sell, assign,
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "successor corporation") shall be a
corporation organized and existing under the laws of the United States
or any State or territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and coupons, if any, and the
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performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(4) such other conditions as may be specified under Section
3.1 with respect to any series of Debt Securities.
SECTION 10.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
rights of the Company and the assumption by such successor of the
covenants of the Company contained herein and in the Debt Securities
and Coupons, if any; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities and the Coupons, if
any, appertaining thereto (and if such covenants are to be for the
benefit of less than all series, stating that such covenants are
expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the Company; or
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(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable
or not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit the issuance of Debt
Securities of any series in uncertificated form, provided that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related Coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply; or
(6) to secure the Debt Securities or to provide that any of
the Company's obligations under any series of the Debt Securities shall
be guaranteed and the terms and conditions for the release or
substitution of such security or guarantee; or
(7) 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 Four or Fifteen, provided that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series or any other series of Debt Securities or any related
Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Sections 2.1 and 3.1; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt 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 6.10; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with any provision of this Indenture;
provided such other provisions shall not adversely affect the interests
of the Holders of Outstanding Debt Securities or Coupons, if any, of
any series created prior to the execution of such supplemental
indenture in any material respect.
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SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities and Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to any series
of Debt Securities pursuant to Section 3.1, (a) change the Stated
Maturity of the principal of, or installment of interest, if any, on,
any Debt Security, or (b) reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof
(provided that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or (c) change the
Stated Maturity of or reduce the amount of any payment to be made with
respect to any Coupon, or (d) change the Currency or Currencies in
which the principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or (e) reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or (f) reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or analogous provisions for any Debt
Security, or (g) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or (h) limit the
obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section
12.3, or (i) adversely affect the right to convert any Debt Security
into shares of Common Stock of the Company as may be provided pursuant
to Section 3.1;
(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any 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
(4) modify any of the provisions of this Section, Section 5.13
or Section 12.7, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security of each series affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee"
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and concomitant changes in this Section and Section 12.7, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.10 and 11.1(9).
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt securities and Coupons, if any, of any other
series.
SECTION 11.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) 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 and that the supplemental indenture
conforms to the requirements of the Trust Indenture Act as then in effect. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a material way.
SECTION 11.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 11.5. 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 11.6. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities and Coupons of such series.
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SECTION 11.7. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 11.2, the Company shall
transmit, in the manner and to the extent provided in Section 1.5, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE XII.
COVENANTS
SECTION 12.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.1 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.6, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.1, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
SECTION 12.2. OFFICER'S CERTIFICATE AS TO DEFAULT.
Unless otherwise specifically provided for with respect to any series
of Debt Securities under Section 3.1, the Company will deliver to the Trustee,
on or before a date not more than four months after the end of each fiscal year
of the Company (which on the date hereof is the calendar year) ending after the
date hereof, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether
or not to the best knowledge of the signer thereof the Company is in compliance
with all covenants and conditions under this Indenture, and, if the Company
shall be in default, specifying all such defaults and the nature thereof of
which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 12.3. MAINTENANCE OF OFFICE OR AGENCY.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange,
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where Debt Securities of that series that are convertible may be surrendered for
conversion, if applicable, and where notices and demands to or upon the Company
in respect of the Debt Securities of that series and this Indenture may be
served. If Debt Securities of a series are issuable as Bearer Securities, the
Company will maintain (A) in the Borough of Manhattan, The City and State of New
York, an office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where Debt Securities of
that series may be surrendered for exchange or redemption, where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Debt
Securities of that series and related Coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Debt
Securities of that series, if so provided pursuant to Section 3.1); provided,
however, that if the Debt Securities of that series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Debt Securities of that series in London, Luxembourg or any other required
city located outside the United States, as the case may be, so long as the Debt
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer, where
Debt Securities of that series may be surrendered for exchange or redemption and
where notices and demands to or upon the Company in respect of the Debt
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency.
No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Debt Securities of a series are denominated and payable in Dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any additional amounts payable on Securities of such series, if so provided
pursuant to Section 3.1) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City and State of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium, interest
or additional amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its
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obligations described in the preceding paragraph. The Company will give prompt
written notice to the Trustee of any such additional designation or rescission
of designation and any change in the location of any such different or
additional office or agency.
SECTION 12.4. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by 10:00 a.m. (New York
City time) or on each due date of the principal (and premium, if any) or
interest on any Debt Securities of such series, deposit with any such Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
Notwithstanding any term herein to the contrary, in no instance shall
the Trustee be under any duty or obligation (i) to maintain any office or to act
in any capacity as an agent for any purpose under this Indenture (or any
supplement hereto) outside the United States, or (ii) to act as a Paying Agent
in respect of any currency other than Dollars.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct
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any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be transmitted in the manner and to the
extent provided by Section 1.5, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 12.5. CORPORATE EXISTENCE.
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
SECTION 12.6. PURCHASE OF DEBT SECURITIES BY COMPANY.
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
SECTION 12.7. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 12.5 and 12.6 (and, if so
specified pursuant to Section 3.1, any other covenant not set forth herein and
specified pursuant to Section 3.1 to be applicable to the Securities of any
series, except as otherwise provided pursuant to Section 3.1) with respect to
the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
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compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XIII.
REDEMPTION OF DEBT SECURITIES
SECTION 13.1. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before their Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified pursuant to Section 3.1 for Debt Securities of any series) in
accordance with this Article.
SECTION 13.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.3, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
SECTION 13.3. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
Except in the case of a redemption in whole of the Bearer Securities or
the Registered Securities of such series, if less than all the Debt Securities
of any series are to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.2 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.2 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in
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its discretion may treat the aggregate principal amount so registered as if it
were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 13.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, not less
than 30 days and not more than 60 days prior to the Redemption Date to the
Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article Thirteen, in the manner provided in Section 1.5. Any
notice so given shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. Failure to give such notice, or any
defect in such notice to the Holder of any Debt Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any
notice of redemption with respect to the Holder of any other Debt Security of
such series.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption;
(4) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed;
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date;
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing
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which the amount of any such missing Coupon or Coupons will be deducted
from the Redemption Price;
(7) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price;
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section
3.5(b) or otherwise, the last date on which such exchanges may be made;
and
(9) that the redemption is for a sinking fund, if such is the
case.
SECTION 13.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (New York City time) on the Redemption Date
for any Debt Securities, 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 12.4) an amount of money in the
Currency or Currencies in which such Debt Securities are denominated (except as
provided pursuant to Section 3.1) sufficient to pay the Redemption Price of such
Debt Securities or any portions thereof which are to be redeemed on that date.
SECTION 13.6. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Section 3.1
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 12.3) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of Coupons for
such interest; and provided, further, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the
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Redemption Price for such Coupon Security may be reduced by an amount equal to
the face amount of all such missing Coupons. If thereafter the Holder of such
Coupon shall surrender to any Paying Agent outside the United States any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted. The surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee, if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless.
SECTION 13.7. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.1 (in the case of Registered
Securities) and at an office of the Trustee, or at such other office or agency
of the Company outside the United States as is specified pursuant to Section 3.1
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, 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 of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
ARTICLE XIV.
SINKING FUNDS
SECTION 14.1. APPLICABILITY OF ARTICLES.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.1 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
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SECTION 14.2. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH DEBT
SECURITIES.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value, provided that such Debt Securities shall not have been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 14.3. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.1) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section 14.2
and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to 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, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.2 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (to the extent it is acting as a Paying Agent with respect to Dollars)
or other Paying Agent appointed by the Company (or by the Company if the Company
is acting as its own Paying Agent) 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 immediately following the date of such
payment) to the redemption of Debt Securities of such series at the Redemption
Price specified in such Debt Securities with respect to the sinking
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fund. Any sinking fund moneys not so applied or allocated by the Trustee (to the
extent it is acting as a Paying Agent with respect to Dollars) or other Paying
Agent appointed by the Company (or by the Company if the Company is acting as
its own Paying Agent) to the redemption of Debt Securities shall be added to the
next sinking fund payment received by the Trustee (to the extent it is acting as
a Paying Agent with respect to Dollars) or other Paying Agent appointed by the
Company (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.4) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section. Any and all sinking fund moneys with respect to
the Debt Securities of any particular series held by the Trustee (to the extent
it is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.4) on the last sinking
fund payment date with respect to Debt Securities of such series and not held
for the payment or redemption of particular Debt Securities of such series shall
be applied by the Trustee (to the extent it is acting as a Paying Agent with
respect to Dollars) or other Paying Agent appointed by the Company (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 13.3 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.4. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.6.
On or before 10:00 a.m. (New York City time) on each sinking fund
payment date, the Company shall pay to the Trustee (to the extent it is acting
as a Paying Agent with respect to Dollars) or other Paying Agent appointed by
the Company (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 12.4) in cash a sum, in
the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.1 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee, any Paying Agent nor the Company shall redeem any
Debt Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt 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 the Debt Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee or applicable Paying Agent (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Debt Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such other
Paying Agent as provided above (or segregated by the Company) for that purpose
in accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund for
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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 the Debt Securities and Coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived as provided herein, such moneys shall thereafter be applied on or prior
to the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE XV.
DEFEASANCE
SECTION 15.1. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.1, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.1 and subject to the proviso in the last sentence
of this paragraph) then the provisions of this Article shall be applicable
except as otherwise specified pursuant to Section 3.1 for Debt Securities of
such series. Defeasance provisions, if any, for Debt Securities denominated
and/or payable in a Foreign Currency or Currencies or for Bearer Securities may
be specified pursuant to Section 3.1; provided, however, that nothing herein or
therein shall obligate the Trustee (without its consent, at its sole option) to
hold or maintain any account, or act as Paying Agent with respect to, any
Foreign Currency or Currencies.
SECTION 15.2. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Section 10.1 with respect to Debt Securities of any series (and, if
so specified pursuant to Section 3.1, any other obligation of the Company or
restrictive covenant added for the benefit of such series pursuant to Section
3.1) ("covenant defeasance option") at any time after the applicable conditions
set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each
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installment of principal (including any mandatory sinking fund
payments) of and premium, if any, and interest on, the Outstanding Debt
Securities of such series on the dates such installments of interest or
principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with
respect to the Debt Securities of any series;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after such date; and
(6) the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling from the Internal Revenue Service to the effect
that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(6) or Section 5.1(7) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
Notwithstanding the Company's exercise of the covenant defeasance option, the
Company may subsequently exercise the legal defeasance option.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the
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Company, shall execute proper instruments acknowledging the same), except (A)
the rights of Holders of Debt Securities of such series to receive, from the
trust fund described in clause (1) above, payment of the principal of (and
premium, if any) and interest on such Debt Securities when such payments are
due, (B) the Company's obligations with respect to the Debt Securities of such
series under Sections 3.4, 3.5, 3.6, 12.3 and 15.3 and (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States 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 the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 15.3. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.2 in respect of Debt Securities of a series shall be held
in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 15.4. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Debt Securities for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.2.
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ARTICLE XVI.
CONVERSION
SECTION 16.1. APPLICABILITY; CONVERSION PRIVILEGE.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, the provisions of this Article Sixteen shall be
applicable to any Debt Securities that are convertible into Common Stock. If so
provided pursuant to Section 3.1 with respect to the Debt Securities of any
series, the Holder of a Debt Security of such series shall have the right, at
such Holder's option, to convert, in accordance with the terms of such series of
Debt Securities and this Article Sixteen, all or any part (in a denomination of,
unless otherwise specified pursuant to Section 3.1 with respect to Securities of
such series, $1,000 in principal amount or any integral multiple thereof) of
such Debt Security into shares of Common Stock or, as to any Debt Securities
called for redemption, at any time prior to the time and date fixed for such
redemption (unless the Company shall default in the payment of the Redemption
Price, in which case such right shall not terminate at such time and date).
SECTION 16.2. CONVERSION PROCEDURE; CONVERSION PRICE; FRACTIONAL
SHARES.
(a) Each Debt Security to which this Article is applicable shall be
convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified in pursuant to Section 3.1 with respect to the Debt
Securities of such series, into fully paid and nonassessable shares (calculated
to the nearest 1/100th of a share) of Common Stock. The Debt Securities will be
converted into shares of Common Stock at the Conversion Price therefor. No
payment or adjustment shall be made in respect of dividends on the Common Stock
or accrued interest on a converted Debt Security except as described in Section
16.9. The Company may, but shall not be required, in connection with any
conversion of Debt Securities, to issue a fraction of a share of Common Stock
and, if the Company shall determine not to issue any such fraction, the Company
shall, subject to Section 16.3(4), make a cash payment (calculated to the
nearest cent) equal to such fraction multiplied by the Closing Price of the
Common Stock on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Debt Security duly
endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.1 (in the case of Registered Securities)
and at an office of the Conversion Agent or at such other place or places, if
any, outside of the United States as is specified pursuant to Section 3.1 (in
the case of Bearer Securities), and shall give written notice to the Company at
said office or place that he elects to convert the same and shall state in
writing therein the principal amount of Debt Securities to be converted and the
name or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued; provided, however, that no Debt
Security or portion thereof shall be accepted for conversion unless the
principal amount of such Debt Security or such portion, when added to the
principal amount of all other Debt Securities or portions
96
thereof then being surrendered by the Holder thereof for conversion, exceeds the
then effective Conversion Price with respect thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured Coupon or Coupons or matured
Coupon or Coupons in default, such conversion may be effected if the Bearer
Securities to be surrendered for conversion are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however that except as otherwise provided in Section
12.3, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an office or agency located outside the United
States. If more than one Debt Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares of Common Stock which
shall be deliverable upon conversion shall be computed on the basis of the
aggregate principal amount of the Debt Securities (or specified portions thereof
to the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Debt Security, or to his nominee or
nominees, certificates for the number of full shares of Common Stock to which he
shall be entitled as aforesaid, together, subject to the last sentence of
paragraph (a) above, with cash in lieu of any fraction of a share to which he
would otherwise be entitled. The Company shall not be required to deliver
certificates for shares of Common Stock while the stock transfer books for such
stock or the Security Register are duly closed for any purpose, but certificates
for shares of Common Stock shall be issued and delivered as soon as practicable
after the opening of such books or Security Register. A Debt Security shall be
deemed to have been converted as of the close of business on the date of the
surrender of such Debt Security for conversion as provided above, and the Person
or Persons entitled to receive the Common Stock issuable upon such conversion
shall be treated for all purposes as the record Holder or Holders of such Common
Stock as of the close of business on such date. In case any Debt Security shall
be surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Debt Securities so surrendered, without charge to such Holder (subject to the
provisions of Section 16.8), a new Debt Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Debt Security.
SECTION 16.3. ADJUSTMENT OF CONVERSION PRICE FOR COMMON STOCK.
The Conversion Price with respect to any Debt Security which is
convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common Stock to holders of Common Stock, (ii)
combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iii) subdivide its outstanding shares of
Common Stock into a greater number of
97
shares of Common Stock or (iv) make a distribution in shares of Common
Stock to holders of Common Stock, then the Conversion Price in effect
immediately before such action shall be adjusted so that the Holders of
such Debt Securities, upon conversion thereof into Common Stock
immediately following such event, shall be entitled to receive the kind
and amount of shares of capital stock of the Company which they would
have owned or been entitled to receive upon or by reason of such event
if such Debt Securities had been converted immediately before the
record dated (or, if no record date, the effective date) for such
event. An adjustment made pursuant to this Section 16.3(1) shall become
effective retroactively immediately after the record date in the case
of a dividend or distribution and shall become effective retroactively
immediately after the effective date in the case of a subdivision or
combination. For the purposes of this Section 16.3(1), each Holder of
Debt Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution (provided
that if the kind or amount of securities receivable upon such dividend,
subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, issue rights or
warrants to all holders of shares of its Common Stock entitling them
(for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per
share less than the Current Market Price of the Common Stock at such
record date (treating the price per share of the securities convertible
into Common Stock as equal to (x) the sum of (i) the price for a unit
of the security convertible into Common Stock and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), the Conversion Price
with respect to such Debt Securities shall be adjusted so that it shall
equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by
a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities
so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock outstanding on the date
of issuance of securities which the aggregate offering price of the
total number of shares of securities so offered for subscription or
purchase (or the aggregate purchase price of the convertible securities
so offered plus the aggregate amount of any additional consideration
initially payable upon conversion of such securities into Common Stock)
would purchase at such Current Market Price of the Common Stock. Such
adjustment shall become effective retroactively immediately after
98
the record date for the determination of stockholders entitled to
receive such rights or warrants.
(3) In the case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, distribute to
all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and the Common Stock is not
changed or exchanged) cash, evidences of its indebtedness, securities
or assets (excluding (i) regular periodic cash dividends in amounts, if
any, determined from time to time by the Board of Directors, (ii)
dividends payable in shares of Common Stock for which adjustment is
made under Section 16.3(1) or (iii) rights or warrants to subscribe for
or purchase securities of the Company (excluding those referred to in
Section 16.3(2))), then in each such case the Conversion Price with
respect to such Debt Securities determined by dividing the Conversion
Price in effect immediately prior to the date of such distribution by a
fraction, the numerator of which shall be the Current Market Price of
the Common Stock on the record date referred to below, and the
denominator of which shall be such Current Market Price of the Common
Stock less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of
the portion of the cash or assets or evidences of indebtedness or
securities so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (provided that such denominator
shall never be less than 1.); provided however, that no adjustment
shall be made with respect to any distribution of rights to purchase
securities of the Company if a Holder of Debt Securities would
otherwise be entitled to receive such rights upon conversion at any
time of such Debt Securities into Common Stock unless such rights are
subsequently redeemed by the Company, in which case such redemption
shall be treated for purposes of this section as a dividend on the
Common Stock. Such adjustment shall become effective retroactively
immediately after the record date for the determination of stockholders
entitled to receive such distribution; and in the event that such
distribution is not so made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 16.3(1), 16.3(2), and 16.3(03), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income
tax purposes.
(5) In any case in which this Section 16.3 shall require that
any adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five (5) Trading Days following the filing of the statement referred to
in Section 16.5) issuing to the Holder of any Debt Securities converted
after such record date the shares of Common Stock and other capital
stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company issuable
upon such
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conversion over and above the shares of Common Stock and other capital
stock of the Company issuable upon such conversion on the basis of the
Conversion Price prior to adjustment; provided, however, that the
Company shall deliver to such Holder a due bill or other appropriate
instrument evidencing such Holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(6) All calculations under this Section 16.3 shall be made to
the nearest cent or one-hundredth of a share of security, with one-half
cent and 0.005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 16.3, the Company
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lessor adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1%
in such price. Any adjustments under this Section 16.3 shall be made
successively whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 16.3, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Stock into which the Debt Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in subparagraphs (1)
through (6) of this Section 16.3, and the provisions of Sections 16.1,
16.2 and 16.4 through 16.9 with respect to the Common Stock shall apply
on like or similar terms to any such other shares and the determination
of the Board of Directors as to any such adjustment shall be
conclusive.
(8) No adjustment shall be made pursuant to this Section: (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Stock or (ii) subject to 16.3(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
SECTION 16.4. CONSOLIDATION OR MERGER OF THE COMPANY.
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Stock or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
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property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt Securities would have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Sixteen (and assuming such holder of Common Stock failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance (provided that, if the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 16.4. The provisions of this
Section 16.4 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
SECTION 16.5. NOTICE OF ADJUSTMENT.
Whenever an adjustment in the Conversion Price with respect to a series
of Debt Securities is required:
(1) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.5. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
SECTION 16.6. NOTICE IN CERTAIN EVENTS.
In case:
(1) of a consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934,
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as amended) of all or substantially all of the property and assets of
the Company; or
(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article Sixteen,
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.5, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article
Sixteen, or, if a record is not to be taken, the date as of which the holders of
record or Common Stock entitled to such distribution, rights or warrants are to
be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article Sixteen is expected
to become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section.
SECTION 16.7. COMPANY TO RESERVE STOCK; REGISTRATION; LISTING.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Debt Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt Securities
would be held by a single holder); provided, however, that nothing contained
herein shall preclude the Company from satisfying its obligations in respect of
the conversion of the Debt Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. The Company shall from time
to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be increased if
the aggregate of the authorized amount of the Common Stock remaining unissued
and the issued shares of such Common Stock in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Debt Securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any
102
governmental authority before such shares or securities may be issued upon such
conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Debt Securities prior to such
delivery upon the principal national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
SECTION 16.8. TAXES ON CONVERSION.
The Company shall pay any and all documentary, stamp or similar issue
or transfer taxes that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Debt Securities pursuant hereto. The
Company shall not, however, be required to pay any such tax which may be payable
in respect of any transfer involved in the issue or delivery of shares of Common
Stock or the portion, if any, of the Debt Securities which are not so converted
in a name other than that in which the Debt Securities so converted were
registered (in case of Registered Securities), and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of such tax or has established to the satisfaction of the
Company that such tax has been paid.
SECTION 16.9. CONVERSION AFTER RECORD DATE.
If any Debt Securities are surrendered for conversion subsequent to the
record date preceding an Interest Payment Date but on or prior to such Interest
Payment Date (except Debt Securities called for redemption on a Redemption Date
between such record date and Interest Payment Date), the Holder of such Debt
Securities at the close of business on such record date shall be entitled to
receive the interest payable on such Debt Securities on such Interest Payment
Date notwithstanding the conversion thereof. Debt Securities surrendered for
conversion during the period from the close of business on any record date next
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of Debt Securities which have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds and in the Currency
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the Debt Securities being surrendered for conversion.
Except as provided in this Section 16.9, no adjustments in respect of payments
of interest on Debt Securities surrendered for conversion or any dividends or
distributions of interest on the Common Stock issued upon conversion shall be
made upon the conversion of any Debt Securities.
SECTION 16.10. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to this Article is conclusive.
103
SECTION 16.11. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debt Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article. Each Conversion Agent
other than the Company shall have the same protection under this Section as the
Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: /s/ TODD C. LARSON
--------------------------
Name:
------------------------
Title:
-----------------------
Attest:
/s/ JACK B. LAY
- ----------------------------
Name:
-----------------------
Title:
----------------------
(SEAL)
THE BANK OF NEW YORK,
as Trustee
By: /s/ ROBERT A. MASSIMILLO
-------------------------
Name:
------------------------
Title:
-----------------------
(SEAL)
104
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
----------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below principal amount of the above captioned Debt Securities held by you for
our account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for the purpose of resale during the
restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury regulations), and in addition if the owner of the Debt
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this is
to further certify that such financial institution has not acquired the Debt
Securities for the purpose of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
We undertake to advise you promptly by [tested telex] on or prior to
the date on which you intend to submit your certification relating to the
beneficial interest in the temporary global Security held by you for our account
in accordance with your operating procedures if any applicable statement herein
is not correct on such date, and in the absence of any such notification it may
be assumed that this certification applies as of such date.
This certificate excepts and does not relate to ________ principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
105
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: , 20
----------------- --
[To be dated no earlier than the
10th day before the Exchange Date]
By:
------------------------
As, or as agent for, the
beneficial
owner(s) of the
portion of the
temporary global
Note to which this
certificate
relates.
106
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
----------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by [tested telex] or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture as of the date hereof,
_________ principal amount of the above-captioned Debt Securities (i) is owned
by person(s) that are not United States person(s) (as defined below), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Debt Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be
107
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated : , 20
------------------- --
[To be dated no earlier than the
Exchange Date]
By:
------------------------
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the
Euro-Clear System]
[CEDEL, S.A.]
108
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 19, 2001
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
Section 310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.8, 6.10
(c) Not Applicable
Section 311 (a) 6.13(a)
(b) 6.13(b)
(c) Not Applicable
Section 312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
Section 313 (a) 7.3(a)
(b) 7.3(b)
(c) 7.3(a),
7.3(c)
(d) 7.3(d)
Section 314 (a) 7.4, 12.2
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
Section 315 (a) 6.1(a),
6.1(c)
(b) 6.2, 7.3(a)(7)
(c) 6.1(b)
(d)(1) 6.1(a)
(d)(2) 6.1(c)(2)
(d)(3) 6.1(c)(3)
(e) 5.14
Section 316 (a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) Not Applicable
Section 317 (a)(1) 5.3
(a)(2) 5.4
(b) 12.4
Section 318 1.6
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
EXHIBIT 4.2
REINSURANCE GROUP OF AMERICA, INCORPORATED
To
-----------------------------------
as Trustee
-----------------
Subordinated Indenture
Dated as of , 200
----------- -- --
TABLE OF CONTENTS
Page
----
ARTICLE I.......................................................................................1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION............................................................1
Section 1.1. Definitions......................................................1
Section 1.2. Compliance Certificates and Opinions............................12
Section 1.3. Form of Documents Delivered to Trustee..........................13
Section 1.4. Notices, etc., to Trustee and Company...........................14
Section 1.5. Notice to Holders; Waiver.......................................14
Section 1.6. Conflict with Trust Indenture Act...............................15
Section 1.7. Effect of Headings and Table of Contents........................15
Section 1.8. Successors and Assigns..........................................15
Section 1.9. Separability Clause.............................................15
Section 1.10. Benefits of Indenture..........................................15
Section 1.11. Governing Law..................................................16
Section 1.12. Legal Holidays.................................................16
Section 1.13. No Security Interest Created...................................16
Section 1.14. Liability Solely Corporate.....................................16
ARTICLE II.....................................................................................17
DEBT SECURITY FORMS..........................................................17
Section 2.1. Forms Generally.................................................17
Section 2.2. Form of Trustee's Certificate of Authentication.................17
Section 2.3. Securities in Global Form.......................................18
ARTICLE III....................................................................................18
THE DEBT SECURITIES..........................................................18
Section 3.1. Amount Unlimited; Issuable in Series............................18
Section 3.2. Denominations...................................................23
Section 3.3. Execution, Authentication, Delivery and Dating..................23
Section 3.4. Temporary Debt Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities; Global Notes
Representing Registered Securities....................................25
Section 3.5. Registration, Transfer and Exchange.............................31
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities...........33
Section 3.7. Payment of Interest; Interest Rights Preserved..................34
Section 3.8. Cancellation....................................................36
Section 3.9. Computation of Interest.........................................37
Section 3.10. Currency of Payments in Respect of Debt Securities.............37
i
Section 3.11. Judgments......................................................40
Section 3.12. Exchange Upon Default..........................................41
ARTICLE IV.....................................................................................41
SATISFACTION AND DISCHARGE...................................................41
Section 4.1. Satisfaction and Discharge of Indenture.........................41
Section 4.2. Application of Trust Money......................................43
ARTICLE V......................................................................................43
REMEDIES.................................................................... 43
Section 5.1. Events of Default...............................................43
Section 5.2. Acceleration of Maturity; Rescission and Annulment..............44
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................................45
Section 5.4. Trustee May File Proofs of Claim................................46
Section 5.5. Trustee May Enforce Claims Without Possession of
Debt Securities.......................................................47
Section 5.6. Application of Money Collected..................................47
Section 5.7. Limitation on Suits.............................................48
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................................48
Section 5.9. Restoration of Rights and Remedies..............................49
Section 5.10. Rights and Remedies Cumulative.................................49
Section 5.11. Delay or Omission Not Waiver...................................49
Section 5.12. Control by Holders.............................................49
Section 5.13. Waiver of Past Defaults........................................50
Section 5.14. Undertaking for Costs..........................................50
Section 5.15. Waiver of Stay or Extension Laws...............................51
ARTICLE VI.....................................................................................51
THE TRUSTEE..................................................................51
Section 6.1. Certain Duties and Responsibilities.............................51
Section 6.2. Notice of Defaults..............................................52
Section 6.3. Certain Rights of Trustee.......................................53
Section 6.4. Not Responsible for Recitals or Issuance of Debt
Securities............................................................54
Section 6.5. May Hold Debt Securities........................................54
Section 6.6. Money Held in Trust.............................................54
Section 6.7. Compensation and Reimbursement..................................54
Section 6.8. Disqualification; Conflicting Interests.........................55
Section 6.9. Corporate Trustee Required; Eligibility.........................61
Section 6.10. Resignation and Removal; Appointment of
Successor.............................................................61
ii
Section 6.11. Acceptance of Appointment by Successor.........................63
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business..............................................................64
Section 6.13. Preferential Collection of Claims Against Company..............64
Section 6.14. Appointment of Authenticating Agent............................68
ARTICLE VII....................................................................................69
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY...............................................................69
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders...............................................................69
Section 7.2. Preservation of Information; Communication to
Holders...............................................................70
Section 7.3. Reports by Trustee..............................................71
Section 7.4. Reports by Company..............................................73
ARTICLE VIII...................................................................................74
CONCERNING THE HOLDERS.......................................................74
Section 8.1. Acts of Holders.................................................74
Section 8.2. Proof of Ownership; Proof of Execution of
Instruments by Holder.................................................74
Section 8.3. Persons Deemed Owners...........................................75
Section 8.4. Revocation of Consents; Future Holders Bound....................76
ARTICLE IX.....................................................................................76
HOLDERS' MEETINGS............................................................76
Section 9.1. Purposes of Meetings............................................76
Section 9.2. Call of Meetings by Trustee.....................................77
Section 9.3. Call of Meetings by Company or Holders..........................77
Section 9.4. Qualifications for Voting.......................................77
Section 9.5. Regulations.....................................................77
Section 9.6. Voting..........................................................78
ARTICLE X......................................................................................78
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE..............................................................78
Section 10.1. Company May Consolidate, etc., Only on Certain
Terms.................................................................78
Section 10.2. Successor Corporation Substituted..............................79
ARTICLE XI.....................................................................................79
iii
SUPPLEMENTAL INDENTURES......................................................79
Section 11.1. Supplemental Indentures Without Consent of
Holders...............................................................79
Section 11.2. Supplemental Indentures With Consent of Holders................81
Section 11.3. Execution of Supplemental Indentures...........................82
Section 11.4. Effect of Supplemental Indentures..............................82
Section 11.5. Conformity with Trust Indenture Act............................83
Section 11.6. Reference in Debt Securities to Supplemental
Indentures............................................................83
Section 11.7. Notice of Supplemental Indenture...............................83
ARTICLE XII....................................................................................83
COVENANTS....................................................................83
Section 12.1. Payment of Principal, Premium and Interest.....................83
Section 12.2. Officer's Certificate as to Default............................83
Section 12.3. Maintenance of Office or Agency................................84
Section 12.4. Money for Debt Securities; Payments To Be Held in
Trust.................................................................85
Section 12.5. Corporate Existence............................................86
Section 12.6. Purchase of Debt Securities by Company.........................87
Section 12.7. Waiver of Certain Covenants....................................87
ARTICLE XIII...................................................................................87
REDEMPTION OF DEBT SECURITIES................................................87
Section 13.1. Applicability of Article.......................................87
Section 13.2. Election to Redeem; Notice to Trustee..........................87
Section 13.3. Selection by Trustee of Debt Securities to Be
Redeemed..............................................................88
Section 13.4. Notice of Redemption...........................................88
Section 13.5. Deposit of Redemption Price....................................89
Section 13.6. Debt Securities Payable on Redemption Date.....................89
Section 13.7. Debt Securities Redeemed in Part...............................90
ARTICLE XIV....................................................................................91
SINKING FUNDS................................................................91
Section 14.1. Applicability of Article.......................................91
Section 14.2. Satisfaction of Mandatory Sinking Fund Payments
with Debt Securities..................................................91
Section 14.3. Redemption of Debt Securities for Sinking Fund.................91
ARTICLE XV.....................................................................................93
DEFEASANCE...................................................................93
iv
Section 15.1. Applicability of Article.......................................93
Section 15.2. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations................................................94
Section 15.3. Deposited Moneys and U.S. Government Obligations
to Be Held In Trust...................................................96
Section 15.4. Repayment to Company...........................................96
ARTICLE XVI....................................................................................96
CONVERSION...................................................................96
Section 16.1. Applicability; Conversion Privilege............................96
Section 16.2. Conversion Procedure; Conversion Price; Fractional
Shares................................................................96
Section 16.3. Adjustment of Conversion Price for Common Stock................98
Section 16.4. Consolidation or Merger of the Company........................101
Section 16.5. Notice of Adjustment..........................................101
Section 16.6. Notice in Certain Events......................................102
Section 16.7. Company to Reserve Stock; Registration; Listing...............103
Section 16.8. Taxes on Conversion...........................................103
Section 16.9. Conversion After Record Date..................................103
Section 16.10. Company Determination Final..................................104
Section 16.11. Trustee's Disclaimer.........................................104
ARTICLE XVII..................................................................................104
SUBORDINATION...............................................................104
Section 17.1. Agreement to Subordinate......................................104
Section 17.2. Certain Definitions...........................................104
Section 17.3. Liquidation; Dissolution; Bankruptcy; etc.....................105
Section 17.4. Default on Senior Indebtedness................................105
Section 17.5. When Distribution Must be Paid Over...........................106
Section 17.6. Notice by Company.............................................106
Section 17.7. Subrogation...................................................106
Section 17.8. Relative Rights...............................................107
Section 17.9. Subordination May Not Be Impaired By Company..................107
Section 17.10. Distribution.................................................107
Section 17.11. Rights of Trustee and Paying Agent...........................108
Section 17.12. Authorization to Effect Subordination........................108
ARTICLE XVIII.................................................................................108
EXTENDED INTEREST PERIOD....................................................108
Section 18.1. Extension of Interest Payment Period..........................108
Section 18.2. Notice of Extension...........................................108
Section 18.3. Limitation on Transactions....................................108
Section 18.4. Applicability of Article......................................108
v
SUBORDINATED INDENTURE dated as of ____ __, 200_, (hereinafter the
"Indenture") between REINSURANCE GROUP OF AMERICA, INCORPORATED, a Missouri
corporation (hereinafter called the "Company"), having its principal executive
office at 1370 Timberlake Manor Parkway, Chesterfield, Missouri 63017-6039 and
____________________________________ (hereinafter called the "Trustee"), having
its principal office at ____________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds or other evidences of indebtedness (herein generally
called the "Debt Securities"), to be issued in one or more series, as in this
Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles or as provided with respect to any series of Debt
Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term "generally
accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder with respect to any series
of Debt Securities, shall mean such as set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession which are in effect as
of the issuance date of such series of Debt Securities; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article III or Article VI, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.1.
"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" as used with respect to any Person shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise, provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by"
and "under common control with" shall have correlative meanings.
"Authenticating Agent" has the meaning specified in Section
6.14.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least
once a day, and customarily published for at least five days in each
calendar week, and of general circulation in the place in connection
with which the term is used or in the financial community of such
place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day in such city.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 2.1, which is
payable to bearer (including any Global Note payable to bearer) and
title to which passes by delivery only, but does not include any
Coupons.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act
2
hereunder or any director or directors and/or officer or officers of
the Company to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.1.
"CEDEL" means Cedel S.A.
"Closing Price" of the Common Stock shall mean the last
reported sale price of such stock (regular way) as shown on the
Composite Tape of the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, in case no such sale takes place on such day,
the average of the closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange
on which such stock is listed or admitted to trading), or, if it is not
listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices as reported in The Nasdaq
Stock Market, or if such stock is not so reported, the average of the
closing bid and asked prices as furnished by any member of the National
Association of Securities Dealers, Inc., selected from time to time by
the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" shall mean the class of Common Stock, par value
$.01 per share, of the Company authorized at the date of this Indenture
as originally signed, or any other class of stock resulting from
successive changes or reclassifications of such Common Stock, and in
any such case including any shares thereof authorized after the date of
3
this Indenture, and any other shares of stock of the Company which do
not have any priority in the payment of dividends or upon liquidation
over any other class of stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer,
the Chief Operating Officer or a Vice President and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Component Currency" has the meaning specified in Section
3.10(i).
"Conversion Agent" means any Person authorized by the Company
to receive Debt Securities to be converted into Common Stock on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may
at any time from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section
3.10(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii) the
ECU to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or (iii) any Currency unit other than the ECU to
be used for the purposes for which it was established. Notwithstanding
any term herein, or in any supplement hereto, to the contrary, in no
instance shall the Trustee be under any duty or obligation to determine
or monitor whether a Conversion Event has occurred. Upon receipt by the
Trustee of an Officers' Certificate of the Company certifying to the
effect that a Conversion Event has occurred, the Trustee shall be
entitled to rely exclusively thereon without independent investigation
on its part.
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per share
of Common Stock at which the Debt Securities of such series are so
4
convertible pursuant to Section 3.1 with respect to such series, as the
same may be adjusted from time to time in accordance with Section 16.3.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at___________________________,
Attention: Corporate Trust Department.
"Corporation" includes corporations, limited liability
companies, limited partnerships, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to any Debt
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Company for
purposes of Section 3.10; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of the Company and
the Trustee at the time of such appointment, require such agent to make
the determinations required by this Indenture by a method consistent
with the method provided in this Indenture for the making of such
decision or determination.
"Current Market Price" on any date shall mean the average of
the daily Closing Prices per share of Common Stock for any thirty (30)
consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not
commence more than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 16.3(3), the "Current
Market Price" of the Common Stock shall mean the average of the daily
Closing Prices per share of Common Stock for the five (5) consecutive
Trading Days ending on the date of the distribution referred to in
Section 16.3(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
5
"Defaulted Interest" has the meaning specified in Section 3.7.
"Discharged" has the meaning specified in Section 15.2.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code (or any successor provision) and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts of
principal, premium, if any, and any interest respectively (on an
aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section 3.2
in the relevant Currency or Currency unit), payable on the basis of
such Market Exchange Rate sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer or any Assistant Treasurer
of the Company.
"Extended Interest Period" has the meaning specified in
Section 3.1.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
6
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the
values of the currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without
limitation, any temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon,
the bearer thereof.
"Indenture" means this Subordinated Indenture as originally
executed, or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and, unless the context otherwise
requires, shall include the terms of a particular series of Debt
Securities as established pursuant to Section 3.1.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only on a certain date,
means interest payable after such date, and, when used with respect to
a Bearer Security, includes any additional amounts payable on such
Bearer Security, if so provided pursuant to Section 3.1.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant Currency unit and
Dollars or such Foreign Currency calculated by the method specified
pursuant to Section 3.1 for the securities of the relevant series, (ii)
for any conversion of Dollars into any Foreign Currency, the noon (New
York City time) buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by
the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign
7
Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for
Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent,
if any, or if there shall not be a Currency Determination Agent, then
the Trustee, shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of
the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such
Currency or Currency unit in question, or such other quotations as the
Currency Determination Agent or the Trustee, as the case may be, shall
deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more than one
market for dealing in any Currency or Currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency or Currency unit shall be that upon which a
nonresident issuer of securities designated in such Currency or
Currency unit would purchase such Currency or Currency unit in order to
make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt Security or an installment
of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption, repayment or repurchase at the option of the Holder
thereof or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company)
and who shall be satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities for whose redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent
8
(other than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Debt Securities and any Coupons thereto pertaining;
provided, however, that if such Debt Securities are to be redeemed
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made and the date for such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company; provided, however,
that in determining whether the Holders of the requisite principal
amount of Debt Securities Outstanding have performed any Act hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding (provided, that
in connection with any offer by the Company or any obligor to purchase
Debt Securities, Debt Securities tendered by a Holder shall be
Outstanding until the date of purchase), except that, (i) in
determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities which the Trustee knows to be so owned
shall be so disregarded and (ii) the foregoing shall not apply at any
time when all of the Outstanding Debt Securities are owned by the
Company, the Trustee and/or any such Affiliate. Debt Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Debt Securities
and that the pledgee is not the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act hereunder,
the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose 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 of the Maturity
thereof pursuant to Section 5.2 and the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant
to Section 3.10(k).
"Overdue Rate" when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.1.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"Permanent Global Note" shall have the meaning given such term
in Section 3.4(b).
9
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.1.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.6 in lieu of a mutilated, lost, destroyed or
stolen Debt Security or a Debt Security to which a mutilated, lost,
destroyed or stolen Coupon appertains shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Debt Security or
the Debt Security to which the mutilated, lost, destroyed or stolen
Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section
3.1, shall be an Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium, if
any, and accrued and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.1 which is registered as to principal
and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for that purpose pursuant to Section 3.1 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any vice president, the secretary, any assistant secretary or any
assistant vice president or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above
10
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5(a).
"Senior Indebtedness" has the meaning specified in Section
17.2.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Specified Amount" has the meaning specified in Section
3.10(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security or the Coupon,
if any, representing such installment of interest, as the date on which
the principal of such Debt Security or such installment of principal,
premium or interest is due and payable.
"Subsidiary" means, with respect to any specified Person, (i)
any corporation, association, or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such Person
or one or more Subsidiaries of such Person (or any combination
thereof).
"Temporary Global Note" shall have the meaning given such term
in Section 3.4(b).
"Trading Day" shall mean, with respect to the Common Stock, so
long as the Common Stock is listed or admitted to trading on the New
York Stock Exchange, a day on which the New York Stock Exchange is open
for the transaction of business, or, if the Common Stock is not listed
or admitted to trading on the New York Stock Exchange, a day on which
the principal national securities exchange on which the Common Stock is
listed is open for the transaction of business, or, if the Common Stock
is not so listed or admitted for trading on any national securities
exchange, a day on which The Nasdaq Stock Market is open for the
transaction of business.
11
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" 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 11.5.
"United States" means the United States of America (including
the States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to
Section 3.1 until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"U.S. Depositary" shall mean or include each Person who is then a U.S.
Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Debt Securities
of any series shall mean the U.S. Depositary with respect to the Debt
Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 15.2.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after the title "Vice President."
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of
12
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.2) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
13
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
SECTION 1.5. NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed, and (2) such notice shall be
sufficiently given to Holders of Bearer Securities or Coupons (unless otherwise
herein expressly provided) if published at least twice in an Authorized
Newspaper or Newspapers in The City of New York and, if Debt Securities of such
series are then listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, in a
daily newspaper in London or Luxembourg or in such other city or cities
specified pursuant to Section 3.1 or in any Debt Security on Business Days, the
first such publication to be not earlier than the earliest date and not later
than two Business Days prior to the latest date prescribed for the giving of
such notice; provided, however, that, in any case, any notice to Holders of
Floating Rate Securities regarding the determination of a periodic rate of
interest, if such notice is required pursuant to Section 3.1, shall be
sufficiently given if given in the manner specified pursuant to Section 3.1.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
14
In the event of suspension of publication of any Authorized Newspapers
or by reason of any other cause it shall be impracticable to give notice by
publication, such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
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 on such waiver. 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, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to Holders is given by publication, any defect in any notice so
published as to any particular Holder shall not affect the sufficiency of such
notice with respect to other Holders, and any notice which is published in the
manner herein provided shall be conclusively presumed to have been duly given.
SECTION 1.6. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.8. SUCCESSORS AND ASSIGNS.
The Company shall have the right at all times to assign any of its
respective rights or obligations under the Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. All
covenants and agreements in this Indenture by the parties hereto shall bind
their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
SECTION 1.9. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent
15
and their successors hereunder, and the Holders (and with respect to the
provisions of Article XVII, the holders of Senior Indebtedness), any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.11. GOVERNING LAW.
This Indenture, the Debt Securities and the Coupons shall be governed
by and construed in accordance with the internal laws of the State of New York.
SECTION 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture or of the Debt Securities or Coupons)
payment of principal (and premium, if any) or interest need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date or at the Stated Maturity, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to such Business Day if such payment is made or duly provided for on such
Business Day.
SECTION 1.13. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities or Coupons, express
or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and
in effect in any jurisdiction where property of the Company or its Subsidiaries
is or may be located.
SECTION 1.14. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Debt Securities or Coupons, or any part
thereof, or of the indebtedness represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, or against
any shareholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities and Coupons are solely corporate
obligations, and that no personal liability whatsoever shall attach to, or be
incurred by, any such incorporator, shareholder, officer or director, past,
present or future, of the Company (or any incorporator, shareholder, officer or
director of any such predecessor or successor corporation), either directly or
indirectly through the Company or any such predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants, promises or agreements contained in this Indenture
or in any of
16
the Debt Securities or Coupons or to be implied herefrom or therefrom; and that
any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of this
Indenture and the issue of Debt Securities; provided, however, that nothing
herein or in the Debt Securities or Coupons contained shall be taken to prevent
recourse to and the enforcement of the liability, if any, of any shareholder or
subscriber to capital stock upon or in respect of the shares of capital stock
not fully paid.
ARTICLE II.
DEBT SECURITY FORMS
SECTION 2.1. FORMS GENERALLY.
The Debt Securities and the Coupons, if any, of each series shall be
substantially in one of the forms (including global form) established in or
pursuant to a Board Resolution or one or more indentures supplemental hereto,
and shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidenced by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 3.3 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons.
Unless otherwise specified as contemplated by Section 3.1, Debt
Securities in bearer form (other than in global form) shall have Coupons
attached.
The definitive Debt Securities and Coupons, if any, 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 Debt Securities and Coupons, as
conclusively evidenced by their execution of such Debt Securities and Coupons.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
17
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
--------------------------------------
- --
--------------------------------------
- --
By------------------------------------
- --
Authorized Signatory
SECTION 2.3. SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.2.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE III.
THE DEBT SECURITIES
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 3.3)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series:
18
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
(2) the aggregate principal amount of such series of Debt
Securities and any limit, on the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 3.4, 3.5, 3.6, 11.6 or
13.7);
(3) the percentage of the principal amount at which the Debt
Securities of such series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity or upon
redemption thereof or the method by which such portion shall be
determined.
(4) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates or
the method by which such date or dates will be determined, on which the
principal of (and premium, if any, on) the Debt Securities of such
series are or may be payable (which, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the series
issued from time to time);
(5) the rate or rates (which may be variable or fixed) at
which the Debt Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which such interest, if any, shall accrue or the method by
which such date or dates shall be determined (which, in either case or
both, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), subject to the right, if any
such right is provided pursuant to this Section 3.1, of the Company to
defer or extend an Interest Payment Date and the duration of such
deferral or extension (an "Extended Interest Period"), and the Regular
Record Dates, if any, for the interest payable on such Interest Payment
Dates and the notice, if any, to Holders regarding the determination of
interest, the manner of giving such notice, the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months and any conditions or contingencies as to the
payment of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee (in the case of Registered
Securities) where the principal of (and premium, if any) and interest
on Debt Securities of the series shall be payable; the extent to which,
or the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid, if other than in the manner
provided in Section 3.7; the extent, if any, to which the provisions of
the last sentence of Section 12.1 shall apply to the Debt Securities of
the series; and the manner in which any principal of, or premium, if
any, on, any Global Note will be paid, if other than as set forth
elsewhere herein and
19
whether any Global Note will require any notation to evidence payment
of principal or interest;
(7) the obligation, if any, of the Company to redeem, repay,
purchase or offer to purchase Debt Securities of the series pursuant to
any mandatory redemption, sinking fund or analogous provisions or upon
other conditions or at the option of the Holder thereof and the period
or periods within which or the dates on which, the prices at which and
the terms and conditions upon which the Debt Securities of the series
shall be redeemed, repaid, purchased or offered to be purchased, in
whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series at its option and the period or periods
within which, or the date or dates on which, the price or prices at
which, and the terms and conditions upon which such Debt Securities may
be redeemed, if any, in whole or in part, at the option of the Company
or otherwise;
(9) if the coin or Currency in which the Debt Securities shall
be issuable is in Dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof
(except as provided in Section 3.4);
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(11) provisions, if any, for the defeasance or discharge of
certain of the Company's obligations with respect to Debt Securities of
the series;
(12) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, whether Coupons will be attached thereto,
whether such Bearer Securities of the series may be exchanged for
Registered Securities of the series, as provided in Section 3.5(b) or
otherwise and the circumstances under which and the place or places at
which any such exchanges, if permitted, may be made;
(13) whether provisions for payment of additional amounts or
tax redemptions shall apply and, if such provisions shall apply, such
provisions; and, if Bearer Securities of the series are to be issued,
whether a procedure other than that set forth in Section 3.4(b) shall
apply and, if so, such other procedure, and if the procedure set forth
in Section 3.4(b) shall apply, the forms of certifications to be
delivered under such procedure;
(14) if other than Dollars, the Foreign Currency or Currencies
in which Debt Securities of the series shall be denominated or in which
payment of the principal of (and premium, if any) and interest on the
Debt Securities of the
20
series may be made, and the particular provisions applicable thereto
and, if applicable, the amount of Debt Securities of the series which
entitles the Holder of a Debt Security of the series or its proxy to
one vote for purposes of Section 9.5;
(15) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a Currency other than that in which the
Debt Securities are denominated or payable without such election, in
addition to or in lieu of the provisions of Section 3.10, the period or
periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid
if such election is made;
(16) the date as of which any Debt Securities of the series
shall be dated, if other than as set forth in Section 3.3;
(17) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index, including, but not limited to,
an index based on a Currency or Currencies other than that in which the
Debt Securities are denominated or payable, or any other type of index,
the manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are denominated or
payable in a Foreign Currency, any other terms concerning the payment
of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(19) the designation of the original Currency Determination
Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.1;
(22) any addition to, or modification or deletion of, any
term or condition relating to subordination, Events of Default or
covenants provided for with respect to Debt Securities of the series,
including, without limitation, Article XVII;
(23) if Bearer Securities of the series are to be issued, (x)
whether interest in respect of any portion of a temporary Debt Security
in global form (representing all of the Outstanding Bearer Securities
of the series) payable in respect of any Interest Payment Date prior to
the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing organization
with respect to the portion of such temporary Debt
21
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date, (y) the terms upon which interests in such temporary Debt
Security in global form may be exchanged for interests in a permanent
Global Note or for definitive Debt Securities of the series and the
terms upon which interests in a permanent Global Note, if any, may be
exchanged for definitive Debt Securities of the series and (z) the
cities and the Authorized Newspapers designated for the purposes of
giving notices to Holders;
(24) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Notes and, in
such case, the U.S. Depositary or any Common Depositary for such Global
Note or Notes; and if the Debt Securities of the series are issuable
only as Registered Securities, the manner in which and the
circumstances under which Global Notes representing Debt Securities of
the series may be exchanged for Registered Securities in definitive
form, if other than, or in addition to, the manner and circumstances
specified in Section 3.4(c);
(25) the designation, if any, of any depositaries, trustees
(other than the applicable Trustee), Paying Agents, Authenticating
Agents, Security Registrars (other than the Trustee) or other agents
with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series will be issuable in
definitive form only upon receipt of certain certificates or other
documents or upon satisfaction of certain conditions, the form and
terms of such certificates, documents or conditions;
(27) whether the Debt Securities of such series will be
convertible into shares of Common Stock and, if so, the terms and
conditions, which may be in addition to or in lieu of the provisions
contained in the Indenture, upon which such Debt Securities will be so
convertible, including the conversion price and the conversion period;
(28) the portion of the principal amount of the Debt
Securities which will be payable upon declaration of acceleration of
the maturity thereof, if other than the principal amount thereof;
(29) The nature, content and date for reports by the Company
to the holders of the Debt Securities;
(30) provisions relating to the subordination of the Debt
Securities, if other than as set forth in Article XVII;
(31) whether Article XVIII will apply to the Debt Securities
of the series, and any addition to, or modification or deletion of,
Article XVIII; and
(32) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to
22
time as to Debt Securities of a series if so provided in or established pursuant
to the authority granted in a Board Resolution or in any such indenture
supplemental hereto, and except as may otherwise be provided in or pursuant to
such Board Resolution and (subject to Section 3.3) set forth in such Officers'
Certificate, or in any such indenture supplemental hereto. All Debt Securities
of any one series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional Debt Securities of
such series.
If any of the terms of a series of Debt Securities is established in or
pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.1 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000 and
any integral multiple thereof and shall be payable only in Dollars.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities and the Coupons, if any, of any series shall be
executed on behalf of the Company by its Chairman, a Vice Chairman, its
President, one of its Vice Presidents or its Treasurer, under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities and Coupons or did not hold such offices at the date of such
Debt Securities and Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities, with appropriate
Coupons, if any, of any series, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities and Coupons and the Trustee in accordance with
the Company Order shall authenticate and deliver such Debt Securities and
Coupons; provided, however, that, in connection with its sale during the
"restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United
States Treasury Regulations), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Security (other than a temporary Global Note in bearer form) may be
delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have furnished
to the Euro-clear operator or to CEDEL a certificate substantially in the form
set forth in Exhibit A to this Indenture. If all the Debt Securities of any one
series are not to be issued at one time and if a Board Resolution or
supplemental indenture relating to such series shall so permit, such
23
Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Debt Securities such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue. If any Debt
Security shall be represented by a permanent Global Note, then, for purposes of
this Section and Section 3.4, the notation of a beneficial owner's interest
therein upon original issuance of such Debt Security or upon exchange of a
portion of a temporary Global Note shall be deemed to be delivery in connection
with the original issuance of such beneficial owner's interest in such permanent
Global Note. Except as permitted by Section 3.6 or 3.7, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and canceled.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities and Coupons of such series, (i) the supplemental
indenture or the Board Resolution by or pursuant to which the form and terms of
such Debt Securities and Coupons have been approved and (ii) an Opinion of
Counsel substantially to the effect that:
(1) the authentication order furnished by the Company to the
Trustee in connection with the authentication and delivery of such Debt
Securities and Coupons conforms to the requirements of this Indenture
and constitutes sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities and Coupons;
(2) the forms and terms of such Debt Securities and Coupons
are consistent with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities and Coupons have been established in a supplemental
indenture, the execution and delivery of such supplemental indenture
has been duly authorized by all necessary corporate action of the
Company, such supplemental indenture has been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(4) the execution and delivery of such Debt Securities and
Coupons have been duly authorized by all necessary corporate action of
the Company and such Debt Securities and Coupons have been duly
executed by the Company and, assuming due authentication by the Trustee
and delivery by the Company, are valid and binding obligations
enforceable against the Company in accordance with their terms,
entitled to the benefit of the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law)
24
and subject to such other exceptions as counsel shall request and as to
which the Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such series,
together with the amount of such Debt Securities, does not exceed any
limit established under the terms of this Indenture on the amount of
Debt Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt Securities
and Coupons if the issuance of such Debt Securities and Coupons pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Debt Securities and this Indenture in a manner which is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or permanent or other definitive
Bearer Security in global form) shall be dated as of the date of original
issuance of the first Debt Security of such series to be issued, except as
otherwise provided pursuant to Section 3.1 with respect to the Bearer Securities
of any series.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.4. TEMPORARY DEBT SECURITIES; EXCHANGE OF
TEMPORARY GLOBAL NOTES FOR DEFINITIVE BEARER SECURITIES; GLOBAL NOTES
REPRESENTING REGISTERED SECURITIES.
(a) Pending the preparation of definitive Registered Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination for Registered Securities of such series, substantially of the
tenor of the definitive Registered Securities in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Registered Securities may determine,
as conclusively evidenced by their execution of such Registered Securities.
Every such temporary Registered Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Registered Securities in lieu of which they are issued. In the case of any
series issuable as Bearer
25
Securities, such temporary Debt Securities may be in global form, representing
such of the Outstanding Debt Securities of such series as shall be specified
therein.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.5 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series (accompanied by any unmatured Coupons),
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of a like Stated Maturity and like
terms and provisions; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security (including a permanent
Bearer Security in global form) shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 3.3.
Until so exchanged, the temporary Registered Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 3.1, all Bearer
Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of the Euro-clear Operator or CEDEL, as the case may be, for
credit to the account of the Company (in the case of sales of Bearer Securities
by the Company directly to investors) or the managing underwriter (in the case
of sales of Bearer Securities by the Company to underwriters) or such other
accounts as the Company or the managing underwriter, respectively, may direct.
On or after the date specified in or determined pursuant to the terms
of any temporary Global Note which (subject to any applicable laws and
regulations) shall be at least 40 days after the issue date of a temporary
Global Note (the "Exchange Date"), the Debt Securities represented by such
temporary Global Note may be exchanged for definitive Debt Securities (subject
to the second succeeding paragraph) or Debt Securities to be represented
thereafter by one or more permanent Global Notes in definitive form without
interest coupons. On or after the Exchange Date such temporary Global Note shall
be surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, at such address as the Trustee may specify and
26
following such surrender, the Trustee shall (1) endorse the temporary Global
Note to reflect the reduction of its principal amount by an equal aggregate
principal amount of such Debt Security, (2) endorse the applicable permanent
Global Note, if any, to reflect the initial amount, or an increase in the amount
of Debt Securities represented thereby, (3) manually authenticate such
definitive Debt Securities (including any permanent Global Note), (4) deliver
such definitive Debt Securities to the Holder thereof or, if such definitive
Debt Security is a permanent Global Note, deliver such permanent Global Note to
the Common Depositary to be held outside the United States for the accounts of
the Euro-clear Operator or CEDEL, as the case may be, for credit to the
respective accounts at Euro-clear Operator or CEDEL, as the case may be,
designated by or on behalf of the beneficial owners of such Debt Securities (or
to such other accounts as they may direct) and (5) redeliver such temporary
Global Note to the Common Depositary, unless such temporary Global Note shall
have been canceled in accordance with Section 3.8 hereof; provided, however,
that, unless otherwise specified in such temporary Global Note, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
(including any permanent Global Note), and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities (including any permanent Global Note), each substantially in the form
set forth in Exhibit B to this Indenture. Each certificate substantially in the
form of Exhibit B hereto of the Euro-clear Operator or CEDEL, as the case may
be, shall be based on certificates of the account holders listed in the records
of the Euro-clear Operator or CEDEL, as the case may be, as being entitled to
all or any portion of the applicable temporary Global Note. An account holder of
the Euro-clear Operator or CEDEL, as the case may be, desiring to effect the
exchange of an interest in a temporary Global Note for an interest in definitive
Debt Securities (including any permanent Global Note) shall instruct the
Euro-clear Operator or CEDEL, as the case may be, to request such exchange on
its behalf and shall deliver to the Euro-clear Operator or CEDEL, as the case
may be, a certificate substantially in the form of Exhibit A hereto and dated no
earlier than 10 days prior to the Exchange Date. Until so exchanged, temporary
Global Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities (including any permanent Global Note) of
the same series authenticated and delivered hereunder, except as to payment of
interest, if any.
The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the
Trustee definitive Debt Securities in an aggregate principal amount equal to the
principal amount of such temporary Global Note, executed by the Company. At any
time, on or after the Exchange Date, upon 30 days' notice to the Trustee by the
Euro-clear Operator or CEDEL, as the case may be, acting at the request of or on
behalf of the beneficial owner, a Debt Security represented by a temporary
Global Note or a permanent Global Note, as
27
the case may be, may be exchanged, in whole or from time to time in part, for
definitive Debt Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary Global Note or such
permanent Global Note, an equal aggregate principal amount of definitive Debt
Securities of the same series of authorized denominations and of a like Stated
Maturity and with like terms and conditions, as the portion of such temporary
Global Note or such permanent Global Note to be exchanged, which, unless the
Debt Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as contemplated by Section 3.1, shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; provided, however, that definitive
Bearer Securities shall be delivered in exchange for a portion of the temporary
Global Note or the permanent Global Note only in compliance with the
requirements of the second preceding paragraph. On or prior to the forty-fifth
day following receipt by the Trustee of such notice with respect to a Debt
Security, or, if such day is not a Business Day, the next succeeding Business
Day, the temporary Global Note or the permanent Global Note, as the case may be,
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Debt Securities without charge following such surrender, upon the
request of the Euro-clear Operator or CEDEL, as the case may be, and the Trustee
shall (1) endorse the applicable temporary Global Note or the permanent Global
Note to reflect the reduction of its principal amount by the aggregate principal
amount of such Debt Security, (2) cause the terms of such Debt Security and
Coupons, if any, to be entered on a definitive Debt Security, (3) manually
authenticate such definitive Debt Security, and (4) if a Bearer Security is to
be delivered, deliver such definitive Debt Security to an address outside the
United States to the Euro-clear Operator or CEDEL, as the case may be, for or on
behalf of the beneficial owner thereof, in exchange for a portion of such
temporary Global Note or the permanent Global Note.
Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Debt Securities in person at the
offices of the Euro-clear Operator or CEDEL. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary Global
Note or the permanent Global Note shall be delivered only to an address outside
the United States. Notwithstanding the foregoing, in the event of redemption or
acceleration of all or any part of a temporary Global Note prior to the Exchange
Date, a permanent Global Note or definitive Bearer Securities, as the case may
be, will not be issuable in respect of such temporary Global Note or such
portion thereof, and payment thereon will instead be made as provided in such
temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary Global
Note or the permanent Global Note shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of the same series
and tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on such temporary
Global Note on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date upon
28
delivery by the Euro-clear Operator or CEDEL to the Trustee of a certificate or
certificates substantially in the form set forth in Exhibit B to this Indenture,
for credit without further interest on or after such Interest Payment Date to
the respective accounts of the Persons who are the beneficial owners of such
temporary Global Note on such Interest Payment Date and who have each delivered
to the Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the
Trustee in exchange for a portion of a temporary Global Note or the permanent
Global Note shall not bear a coupon for any interest which shall theretofore
have been duly paid by the Trustee to the Euro-clear Operator or CEDEL, or by
the Company to the Trustee in accordance with the provisions of this Section
3.4.
With respect to Exhibits A and B to this Indenture, the Company may, in
its discretion and if required or desirable under applicable law or as set forth
in any Board Resolution or Supplemental Indenture with respect to any Series of
Debt Securities, substitute one or more other forms of such exhibits for such
exhibits, eliminate the requirement that any or all certificates be provided, or
change the time that any certificate may be required, provided that such
substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
(c) If the Company shall establish pursuant to Section 3.1 that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more Global Notes, then the Company shall execute and the Trustee
shall, in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the U.S. Depositary for such Global Note or Notes or
the nominee of such depositary, and (iii) shall bear a legend substantially to
the following effect: "This Debt Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.5,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
29
If at any time the U.S. Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Debt Securities of such series or if at any time the U.S.
Depositary for Debt Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor U.S. Depositary with respect to the Debt Securities of such series. If
a successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver,
Registered Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.1 with respect to
Registered Securities of a series, the U.S. Depositary for such series of
Registered Securities may surrender a Global Note for such series of Debt
Securities in exchange in whole or in part for Registered Securities of such
series in definitive form on such terms as are acceptable to the Company and
such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered
30
Global Note and the aggregate principal amount of Registered Securities
delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars or the terms of any series of
Debt Securities may provide otherwise.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 3.1, the
provisions of this Section 3.5(b) shall be applicable to Debt Securities of any
series which are Bearer Securities. At the option of the Holder thereof, to the
extent permitted by law, any Bearer Security of any series which by its terms is
registrable as to principal and interest may be exchanged for a Registered
Security of such series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions upon surrender of such Bearer
Security at the Corporate Trust Office or at any other office or agency of the
Company designated pursuant to Section 3.1 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all
31
unmatured Coupons and any matured Coupons in default attached thereto. If the
Holder of a Bearer Security is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 12.3, interest represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(c) Except as otherwise specified pursuant to Section 3.1, in no event
may Registered Securities, including Registered Securities received in exchange
for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange of Debt
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
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No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.4(b) or 3.6. 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, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption under Section 13.3 and
ending at the close of business on the day of such transmission, or (ii) to
register, transfer or exchange any Debt Security so selected for redemption in
whole or in part, except the unredeemed portion of any Debt Security being
redeemed in part.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES.
If (i) any mutilated Debt Security or any mutilated Coupon with the
Coupon Security to which it appertains (and all unmatured Coupons attached
thereto) is surrendered to the Trustee at its Corporate Trust Office, or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security or any Coupon, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any Paying Agent harmless, and neither
the Company nor the Trustee receives notice that such Debt Security or Coupon
has been acquired by a bona fide purchaser, then the Company shall execute and
upon Company Request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing a
number not contemporaneously Outstanding, and, in the case of a Coupon Security,
with such Coupons attached thereto that neither gain nor loss in interest shall
result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt Security or
Coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay the amount due on
such Debt Security or Coupon in accordance with its terms; provided, however,
that principal of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 12.3, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1 or except as otherwise provided in this
Section 3.6, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
33
Every new Debt Security or Coupon of any series issued pursuant to this
Section shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security or Coupon
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debt Securities or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or Coupons.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.1 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.1 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.1, by wire transfer to an account designated by the Registered Holder.
(b) Interest on any Coupon Security which is payable and is punctually
paid or duly provided for on any Interest Payment Date shall be paid to the
Holder of the Coupon which has matured on such Interest Payment Date upon
surrender of such Coupon on such Interest Payment Date at the Corporate Trust
Office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 3.1.
Interest on any Bearer Security (other than a Coupon Security) which is
payable and is punctually paid or duly provided for on any Interest Payment Date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such Interest Payment Date at the
Corporate Trust Office of the Trustee or at such other Place of Payment
maintained by the Company outside the United States specified pursuant to
Section 3.1.
Unless otherwise specified pursuant to Section 3.1, at the direction of
the Holder of any Bearer Security or Coupon payable in Dollars, payment on such
Bearer Security or Coupon will be made by check drawn on a bank in The City of
Boston or, if agreeable to the Trustee, by wire transfer to a Dollar account
maintained by such Holder outside the United States. If such payment at the
offices of all Paying Agents outside the United States becomes illegal or is
effectively precluded because of the imposition of exchange controls or similar
restrictions on the full payment or receipt of such amounts in Dollars, the
Company will appoint an office or agent in the United States at which such
payment may be made. Unless otherwise specified pursuant to Section 3.1, at the
direction of the
34
Holder of any Bearer Security or Coupon payable in a Foreign Currency, payment
on such Bearer Security or Coupon will be made by a check drawn on a bank
outside the United States or by wire transfer to an appropriate account
maintained by such Holder outside the United States. Except as provided in this
paragraph, no payment on any Bearer Security or Coupon will be made by mail to
an address in the United States or by wire transfer to an account in the United
States.
(c) Any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall, if such Debt Security is a Registered Security,
forthwith cease to be payable to the Registered Holder on the relevant Regular
Record Date by virtue of his having been such Registered Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Registered Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money in the Currency or Currency unit in
which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.1 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which date shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the Holders of such Registered Securities at their
addresses as they appear in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment
35
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer Securities of
any series shall be payable pursuant to such procedures as may be satisfactory
to the Trustee in such manner that there is no discrimination between the
Holders of Registered Securities (if any) and Bearer Securities of such series,
and notice of the payment date therefor shall be given by the Trustee, in the
name and at the expense of the Company, in the manner provided in Section 1.5
not more than 25 days and not less than 20 days prior to the date of the
proposed payment.
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.8. CANCELLATION.
Unless otherwise specified pursuant to Section 3.1 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund and all Coupons
surrendered for payment or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Registered Securities and
matured Coupons so delivered shall be promptly canceled by the Trustee. All
Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by the Company Order, shall be canceled or held
for reissuance. Bearer Securities and unmatured Coupons held for reissuance may
be reissued only in exchange for Bearer Securities of the same series and of
like Stated Maturity and with like terms and conditions pursuant to Section 3.5
or in replacement of mutilated, lost, stolen or destroyed Bearer Securities of
the same series and of like Stated Maturity and with like terms and conditions
or the related Coupons pursuant to Section 3.6. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the Trustee
for cancellation any Debt Securities or Coupons previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Debt Securities previously authenticated
hereunder which the Company has not issued, and all Debt Securities or Coupons
so delivered shall be promptly canceled by the Trustee. No Debt Securities or
Coupons shall be authenticated in lieu of or in exchange for any Debt Securities
or Coupons canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities and Coupons held by the Trustee
shall be delivered to the Company upon Company Request. The acquisition of any
Debt Securities or Coupons by the Company shall not operate as a redemption or
satisfaction of the indebtedness represented thereby unless and until such Debt
Securities or Coupons are surrendered to the Trustee for cancellation. In the
case of any temporary Global Note which shall be destroyed if the entire
aggregate principal amount of the Debt Securities represented thereby has been
exchanged, the certificate of destruction shall state that all certificates
required pursuant to Section 3.4 hereof and substantially in the form of Exhibit
B hereto, to be given by the Euro-clear Operator or
36
CEDEL, have been duly presented to the Trustee by the Euro-clear Operator or
CEDEL, as the case may be. Permanent Global Notes shall not be destroyed until
exchanged in full for definitive Debt Securities or until payment thereon is
made in full.
SECTION 3.9. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.10. CURRENCY OF PAYMENTS IN RESPECT OF DEBT SECURITIES.
(a) Except as otherwise specified pursuant to Section 3.1 for Bearer
Securities of any series, payment of the principal of (and premium, if any) and
interest on Bearer Securities of such series denominated in any Currency will be
made in such Currency.
(b) With respect to Registered Securities of any series not permitting
the election provided for in paragraph (c) below or the Holders of which have
not made the election provided for in paragraph (c) below, except as provided in
paragraph (e) below, payment of the principal of (and premium, if any) and any
interest on any Registered Security of such series will be made in the Currency
in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.1 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below (and provided that in no instance may such
election be made after a defeasance pursuant to Article XV or during the
continuance of an Event of Default), to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election in the applicable
supplemental indenture by delivering to the Trustee a written election, to be in
form and substance satisfactory to the Trustee, not later than the close of
business on the Election Date immediately preceding the applicable payment date.
If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change or election may
be made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or notice of
redemption has been given by the Company pursuant to Article XIII). Any Holder
of any such Registered Security who shall not have delivered any such election
to the Trustee by the close of business on the applicable Election Date will be
paid the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.1, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice
37
specifying, in the Currency in which each series of the Registered Securities is
payable, the respective aggregate amounts of principal of (and premium, if any)
and any interest on the Registered Securities to be paid on such payment date,
specifying the amounts so payable in respect of the Registered Securities as to
which the Holders of Registered Securities denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph (c) above.
If the election referred to in paragraph (c) above has been provided for
pursuant to Section 3.1 and if at least one Holder has made such election, then,
on the second Business Day preceding each payment date, the Company will deliver
to the Trustee an Exchange Rate Officer's Certificate in respect of the Currency
payments to be made on such payment date. The Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (c) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"Valuation Date") immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other Currency unit in which any of the Debt Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent, if any, or, if there
shall not be a Currency Determination Agent, then by the Trustee, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any Currency
shall have elected to be paid in another Currency as provided in paragraph (c)
above, and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election. If a Conversion Event occurs with respect
to the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in paragraph
(e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Currency Determination Agent, and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Currency Determination Agent, and subject to the provisions of paragraph (i)
below, shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
38
(i) For purposes of this Section 3.10 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more Currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more Currencies with appropriate
Dollar equivalents at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including but not
limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such Currency unit, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at
the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the earlier of (i) the seventh
Business Day immediately preceding any payment date or (ii) the record
date with respect to any payment date, and with respect to the Maturity
shall mean the record date (if within 16 or fewer days prior to the
Maturity) immediately preceding the Maturity, and with respect to any
series of Debt Securities whose record date immediately preceding the
Maturity is more than 16 days prior to the Maturity or any series of
Debt Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes
39
and irrevocably binding upon the Company and all Holders of the Debt Securities
denominated or payable in the relevant Currency. In the event of a Conversion
Event with respect to a Foreign Currency, the Company, after learning thereof,
will immediately give written notice thereof to the Trustee (and the Trustee
will promptly thereafter give notice in the manner provided in Section 1.5 to
the Holders) specifying the Conversion Date. In the event of a Conversion Event
with respect to the ECU or any other Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 1.5 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders of
Outstanding Debt Securities may perform an Act which requires that a specified
percentage of the Outstanding Debt Securities of all series perform such Act and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal of (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably,
the principal of (and premium, if any) and interest on the Outstanding Debt
Securities denominated in a Foreign Currency will be the amount in Dollars based
upon the Market Exchange Rate for Debt Securities of such series, as of the date
for determining whether the Holders entitled to perform such Act have performed
it, or as of the date of such decision or determination by the Trustee, as the
case may be.
(l) The Company hereby appoints itself as the initial Currency
Determination Agent and the Company shall be entitled to remove such agent at
any time; provided, however, that such removal shall not be effective and the
agent may not resign until a successor has been appointed by the Company and the
successor has accepted such appointment. The Trustee is under no duty or
obligation to serve in the capacity of Currency Determination Agent.
SECTION 3.11. JUDGMENTS.
If for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company hereunder or under any Debt Security, it shall
become necessary to convert into any other Currency any amount in the Currency
due hereunder or under such Debt Security, then such conversion shall be made at
the Market Exchange Rate as in effect on the date the Company shall make payment
to any Person in satisfaction of such judgment. If pursuant to any such
judgment, conversion shall be made on a date other than the date payment is made
and there shall occur a change between such Market Exchange Rate and the Market
Exchange Rate as in effect on the date of payment, the Company agrees to pay
such additional amounts (if any) as may be necessary to ensure that the amount
paid is equal to the amount in such other Currency
40
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Debt
Security. Any amount due from the Company under this Section 3.11 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security. In no event, however, shall the Company be required to pay more in the
Currency or Currency unit due hereunder or under such Debt Security at the
Market Exchange Rate as in effect when payment is made than the amount of
Currency stated to be due hereunder or under such Debt Security so that in any
event the Company's obligations hereunder or under such Debt Security will be
effectively maintained as obligations in such Currency, and the Company shall be
entitled to withhold (or be reimbursed for, as the case may be) any excess of
the amount actually realized upon any such conversion over the amount due and
payable on the date of payment or distribution.
SECTION 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.1, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the bearer of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than (i) Debt
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
3.6, (ii) Coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived under Section 3.5,
(iii) Coupons appertaining to Bearer Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 13.6, and (iv) Debt Securities
41
and Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 12.4) have been delivered to the Trustee for
cancellation; or
(B) all Debt Securities and the Coupons, if any, of such
series not theretofore delivered to the Trustee for cancellation,
(i) have become due and payable by reason of the making of
a notice of redemption or otherwise, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.1, or if not so specified in the case
of (i), (ii) or (iii) of this subclause (B), has irrevocably deposited
or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in United States Dollars,
non-callable government securities, or a combination thereof, in such
amounts as will be (except as otherwise provided pursuant to Sections
3.1 or 3.10) sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on such Debt
Securities not delivered to the Trustee for cancellation for principal,
premium, if any and accrued interest to the date of such deposit (in
the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 12.4, shall
survive. If, after the deposit referred to in Section 4.1 has been made, (x) the
Holder of a Debt Security is entitled to, and does, elect pursuant to Section
3.10(c), to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.1 was made, or (y) if a Conversion Event occurs with
respect to the Currency in which the deposit was made or elected to be received
by the Holder pursuant to Section 3.10(c), then the indebtedness represented by
such Debt Security shall be fully discharged to the extent that the deposit made
with respect to such Debt Security shall be converted into the Currency in which
such payment is made.
42
SECTION 4.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
Coupons, if any, and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE V.
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt Securities
of any series means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Debt
Security or any payment with respect to the Coupons, if any, of such
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (and premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been
included in this Indenture solely for the benefit of Debt Securities of
a series other than 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 or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order adjudging the
Company a bankrupt or insolvent, or approving as
43
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, custodian, 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 90
consecutive days; or
(6) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other
similar law, or the consent by it to the entry of an order for relief
in an involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, 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
its 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
(7) any other Event of Default specified with respect to Debt
Securities of that series pursuant to Section 3.1.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities or indexed
securities, such portion of the principal amount of such Discount Securities as
may be specified in the terms of such Discount Securities or indexed securities)
of all the Debt Securities of such series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) plus
accrued and unpaid interest (and premium, if payable) shall become immediately
due and payable, provided, however, that payment of such principal and interest,
if any, on the Debt Securities of such series shall remain subordinated to the
extent provided in Article XVII. Upon payment of such amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Sections 3.1 or 3.10), all obligations of the Company in respect of
the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
44
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Sections 3.1 or 3.10) sufficient to
pay
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to any
Coupons of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each
Debt Security of such series or upon overdue payments on
any Coupons of such series at the Overdue Rate, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; provided,
however, that all sums payable under this clause (D) shall
be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Debt Security or any payment with respect to any
Coupons when such interest or payment becomes due and payable and such
default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) 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 Debt Securities of any series,
45
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue Rate;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount 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 decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and Coupons,
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities and
Coupons of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities and Coupons, if any, of a particular
series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration 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,
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are 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 5.2) (and premium, if any) and interest owing
and unpaid in respect of the Debt Securities and Coupons 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,
46
its agents and counsel) and of the Holders of such Debt Securities and
Coupons 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, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities and any Coupons of such 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 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture or the Debt
Securities and the Coupons, if any, of any series may be prosecuted and enforced
by the Trustee without the possession of any of such Debt Securities or Coupons
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Debt Securities or Coupons in respect of which such judgment
has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Subject to Article XVII, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the Debt
Securities or Coupons of any series in respect of which money has been 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 6.7.
SECOND: To the payment of all Senior Indebtedness if and to
the extent required by Article XVII.
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
or
47
Coupons of such series, in respect of which or for the benefit of which
such money has been collected ratably, without preference or priority
of any kind, according to the amounts due and payable on such Debt
Securities or Coupons for principal (and premium, if any) and interest,
respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7. LIMITATION ON SUITS.
No Holder of any Debt Security or Coupon 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 for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any other
series, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders. For the protection and enforcement of the provisions of this Section
5.7, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or of any Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7)
48
interest on such Debt Security or Coupon on the respective Stated Maturity or
Maturities expressed in such Debt Security or Coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment and interest thereon, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.9. 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 the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that
49
the proceeding so directed would be unjustly prejudicial to the Holders
of Debt Securities of such series not joining in any such direction;
and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
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 any such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Debt Security of such series, or in the payment of
any sinking fund installment or analogous obligation with respect to
the Debt Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article XI cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of the Debt Securities of such series under this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee 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 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security or Coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on such Debt Security or the
payment of any Coupon on or after the respective Stated Maturity or Maturities
expressed in such Debt Security or Coupon (or, in the case of redemption, on or
after the Redemption Date).
50
SECTION 5.15. 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 VI.
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) 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 provisions 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 with respect to Debt Securities of
any series has occurred and is continuing, the Trustee shall, with respect to
the Debt Securities of such series, exercise such of the rights and powers
vested in it by this Indenture, 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
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) 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;
51
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series 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;
(4) the Trustee is under no obligation or duty to pay interest
on or invest any funds deposited with it except as specifically
provided in this Indenture, and all investment activities undertaken by
the Trustee, if any, shall be at and pursuant to the written
instruction of the Company; and
(5) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of 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.
(e) Any opinion required or permitted to be delivered to the Trustee
hereunder may be addressed and delivered to the entity serving as Trustee
hereunder solely in its individual capacity and not in its capacity as Trustee,
fiduciary or as representative of the holders of such Debt Securities and
Coupons issued by the Company.
SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities or Coupons, if any, of any series, the Trustee shall
give notice to all Holders of Debt Securities and Coupons of such series of such
default hereunder 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 the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Debt Securities and of Coupons of
such series; and provided, further, that in the case of any default of the
character specified in Section 5.1(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
52
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a) of this Indenture.
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
(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,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be
53
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities or Coupons, if any, of any series. The
Trustee shall not be accountable for the use or application by the Company of
any Debt Securities or the proceeds thereof.
SECTION 6.5. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities or Coupons, and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.6. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for (i) interest on any money received by it hereunder except as otherwise
agreed with the Company or (ii) losses resulting from currency fluctuations or
any investments made pursuant to 6.1(c)(4).
SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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);
(2) except as otherwise expressly provided herein, to
reimburse the trustee in Dollars 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
54
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Debt Securities and
Coupons, if any, upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of amounts due on the Debt
Securities and Coupons.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture.
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series, then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as hereinafter defined) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of such
90-day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below, resign with respect to the Debt Securities
of such series, and the Company shall take prompt steps to have a successor
appointed, in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit to all Holders of Debt Securities of such series notice
of such failure.
Notice given pursuant to this Section 6.8(b) shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of
the Registered Holders appear in the Security Register;
(2) to such Holders of Bearer Securities of any series as have,
within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) to each Holder of a Debt Security of any series whose name
and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a) of this Indenture.
55
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Debt Securities of any series,
if there shall exist an Event of Default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) with respect to such
Debt Securities and
(1) the Trustee is trustee under this Indenture with respect to
the Outstanding Debt Securities of any series other than that series or
is trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debt Securities issued under this Indenture, provided that there shall
be excluded from the operation of this paragraph this Indenture with
respect to the Debt Securities of any series other than that series and
any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or
indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally and such other indenture
or indentures are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c)
of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to the Debt
Securities of such series and one or more other series or the
provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make
it necessary, in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Debt Securities of such
series and such other series or under such other indenture or
indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Debt Securities of such series
and such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debt Securities of
such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
56
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Company but may not
be at the same time an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a
director of the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depositary or in any other similar capacity, or,
subject to the provisions of paragraph (l) of this subsection, to act
as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection defined), (i) 5% or more of the voting
securities, or 10% or more of any other class of security, of the
Company not including the Debt Securities issued under this Indenture
and securities issued under any other indenture under which the Trustee
is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default
or any anniversary of such Event of Default while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of
57
which would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this subsection. As to any such securities of which
the Trustee acquired ownership through becoming executor, administrator
or testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a period of
not more than two years from the date of such acquisition, to the
extent that such securities included in such estate do not exceed 25%
of such voting securities or 25% of any such class of security.
Promptly after the dates of any such Event of Default and annually in
each succeeding year that such Event of Default continues, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to
make payment in full of the principal of (or premium, if any) or
interest on any of the Debt Securities when and as the same becomes due
and payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration
of such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph, all such securities so held by
the Trustee, with sole or joint control over such securities vested in
it, shall be considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the
Trustee shall be or shall become a creditor of the Company.
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; provided, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as
58
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time,
or has participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a participation in
the direct or indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate,
an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the
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outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting securities of
such person are entitled to cast in the direction or management of the
affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount", when used with regard to securities
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the
principal of or interest on any Debt Security of any series, or in the payment
of any sinking or purchase
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fund installment, the Trustee shall not be required to resign as provided by
this Section if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that:
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia 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, 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. Neither the Company nor any person directly or
indirectly controlling, controlled by, or under common control with the Company
shall serve as Trustee upon any Debt Securities.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 6.8(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debt Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Debt Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Debt Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Debt Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders of such series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Debt Security of such
series for at least six months may, subject to Section 5.14, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 1.5 to the
Holders of Debt Securities of such series. Each
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notice shall include the name of the successor Trustee with respect to the Debt
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, each such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any 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 other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates, but,
on request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such
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successor Trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in subsection (c)
of this Section, or subsequent to such default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the Debt
Securities and of the Coupons, if any, and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to
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the proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such
claim by the Trustee to a third Person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings or
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months, or
(D) to receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on
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account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustee and
the Holders and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
other similar law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose
of preserving any
66
property which shall at any time be subject to the Lien of this
Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) The acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) for the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Debt Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
(3) 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 and payable upon demand.
(4) 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
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of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt
Securities.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent, except that only the Trustee may authenticate Debt
Securities upon original issuance and pursuant to Section 3.6 hereof. Such
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 $10,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation into which 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 all series of Debt Securities 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 for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
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 6.14 with respect to one or more
or all series of Debt
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Securities, the Trustee for such series shall upon Company Request appoint a
successor Authenticating Agent, and the Company shall provide notice of such
appointment to all Holders of Debt Securities of such series in the manner and
to the extent provided in Section 1.5. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein. The Trustee for
the Debt Securities of such series agrees to pay to the Authenticating Agent for
such series from time to time reasonable compensation for its services, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 6.7. The Authenticating Agent for the Debt Securities of
any series shall have no responsibility or liability for any action taken by it
as such at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
As Trustee
By:________________________
As Authenticating Agent
By:________________________
Authorized Signatory
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as 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 Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.1 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
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(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all 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 Bearer Securities of all series; provided, however,
that the Company shall have no obligation to investigate any matter relating to
any Holders of Bearer Securities of any series.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in Section
7.1 upon receipt of a new list so furnished, destroy any information received by
it as Paying Agent (if so acting) hereunder upon delivering to itself as
Trustee, not earlier than 45 days after an Interest Payment Date, a list
containing the names and addresses of the Holders obtained from such information
since the delivery of the next previous list, if any, destroy any list delivered
to itself as Trustee which was compiled from information received by it as
Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered, and destroy not earlier than two years after filing, any information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security 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 Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities with
respect to their rights under this Indenture or under the Debt Securities 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 Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt Securities, as
the case may be,
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whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.2(a), 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 the Holders of
Debt Securities of such series or all Holders, as the case may be, 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.
(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.2(b).
SECTION 7.3. REPORTS BY TRUSTEE.
(a) Within 60 days after January 15 of each year, commencing January
15, 2000, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.3, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8;
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(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.8(c) of this
Indenture;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debt Securities of such
series, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report
such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Outstanding Debt
Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or any other obligor on
the Debt Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee
has not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.3 shall be transmitted by
mail:
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(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register;
(2) to such Holders of Bearer Securities of any series as
have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to subsection (b)
of this Section 7.3, to each Holder of a Debt Security of any series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 7.2(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed with the Company and the Company shall file such report
with each stock exchange upon which any Debt Securities of such series are
listed, with the Commission and also with the Company. The Company will notify
the Trustee when any series of Debt Securities are listed on any stock exchange.
SECTION 7.4. REPORTS BY COMPANY.
Unless otherwise specified with respect to a particular series of Debt
Securities pursuant to Section 3.1, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended.
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly
reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall continue to file with the Commission and
provide the Trustee and the Holders of each series of Debt Securities
with, without cost to each Holder, (a) within 90 days after the end of
each fiscal year, annual reports on Form 10-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in such successor or comparable form); (b) within
45 days after the end of each of the first three fiscal quarters of
each fiscal year, reports on Form 10-Q (or any successor or comparable
form); and (c) promptly from time to time after the occurrence of an
event required to be therein reported, such other reports on Form 8-K
(or any successor or comparable form) containing the information
required to be contained therein (or required in any successor or
comparable form); provided, however, that the Company shall not be
obligated to file such reports with the Commission if the Commission
does not permit such filings. The Company will in all cases,
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without cost to each recipient, provide copies of such information to
the Holders of the Debt Securities of each series and, if they are not
permitted to file such reports with the Commission, shall make
available information to prospective purchasers and to securities
analysts and broker-dealers upon their request;
(2) file with the 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
(3) transmit to all Holders of Debt Securities, in the manner
and to the extent provided in Section 7.3, 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 (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE VIII.
CONCERNING THE HOLDERS
SECTION 8.1. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy 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. Whenever in this Indenture it is provided that
the Holders of a specified percentage in aggregate principal amount of the
Outstanding Debt Securities of any series may take any Act, the fact that the
Holders of such specified percentage have joined therein may be evidenced (a) by
the instrument or instruments executed by Holders in person or by agent or proxy
appointed in writing, or (b) by the record of Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article IX, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders.
SECTION 8.2. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS
BY HOLDER.
The ownership of Registered Securities of any series shall be proved by
the Security Register for such series or by a certificate of the Security
Registrar for such series.
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The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state that on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 3.1, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
canceled or paid.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer
authorized to take acknowledgements of deeds, that the person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
SECTION 8.3. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.7) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. The Company, the Trustee, and any agent of the Company or the Trustee
may treat the Holder of any Bearer Security or of any Coupon as the absolute
owner of such Bearer Security or Coupon for the purposes of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Bearer Security or Coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to
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the contrary. All payments made to any Holder, or upon his order, shall be
valid, and, to the extent of the sum or sums paid, effectual to satisfy and
discharge the liability for moneys payable upon such Debt Security or Coupon.
SECTION 8.4. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.2,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.8, upon all
future Holders of such Debt Security and all past, present and future Holders of
Coupons, if any, appertaining thereto and of any Debt Securities and Coupons
issued on transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or Coupons or such other Debt Securities or Coupons.
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article IX for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article V;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
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SECTION 9.2. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 9.1, to be held at such time
or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.5. Such notice shall be given not
less than 10 days nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.3. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding Debt
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 10 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
SECTION 9.5. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee for
any series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.3, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
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Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified pursuant to
Section 3.1) of Debt Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Debt Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Outstanding Debt Securities of
such series held by him or instruments in writing duly designating him as the
person to vote on behalf of Holders of Debt Securities of such series. Any
meeting of Holders with respect to which a meeting was duly called pursuant to
the provisions of Section 9.2 or 9.3 may be adjourned from time to time by a
majority of such Holders present and the meeting may be held as so adjourned
without further notice.
SECTION 9.6. VOTING.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.2. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into or wind up
into (whether or not the Company is the surviving corporation) or sell, assign,
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
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(1) the Corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "successor corporation") shall be a
Corporation organized and existing under the laws of the United States
or any State or territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and coupons, if any, and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(4) such other conditions as may be specified under Section
3.1 with respect to any series of Debt Securities.
SECTION 10.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other Corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
rights of the Company and the assumption by such successor of the
covenants of the Company contained herein and in the Debt Securities
and Coupons, if any;
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(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities and the Coupons, if
any, appertaining thereto (and if such covenants are to be for the
benefit of less than all series, stating that such covenants are
expressly being included solely for the benefit of such series), or to
surrender any right or power herein conferred upon the Company;
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series);
(4) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable
or not registrable, and with or without Coupons, to permit Bearer
Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit the issuance of Debt
Securities of any series in uncertificated form, provided that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related Coupons in any material
respect;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision and as to
which such supplemental indenture would apply;
(6) to secure the Debt Securities or to provide that any of
the Company's obligations under any series of the Debt Securities shall
be guaranteed and the terms and conditions for the release or
substitution of such security or guarantee;
(7) 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 IV or XV, provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of such series
or any other series of Debt Securities or any related Coupons in any
material respect;
(8) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Sections 2.1 and 3.1;
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to one or more series of
Debt 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 6.10;
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(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with any provision of this Indenture; or
(11) to modify the provisions of Section 17 (except, with
respect to any Outstanding Securities, to the extent prohibited by
clause 5 of Section 11.2);
provided such other provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities or Coupons, if any, of any series created
prior to the execution of such supplemental indenture in any material respect.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities and Coupons, if any; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security of each such series affected thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to any series
of Debt Securities pursuant to Section 3.1, (a) change the Stated
Maturity of the principal of, or installment of interest, if any, on,
any Debt Security, or (b) reduce the principal amount thereof or the
interest thereon or any premium payable upon redemption thereof
(provided that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or (c) change the
Stated Maturity of or reduce the amount of any payment to be made with
respect to any Coupon, or (d) change the Currency or Currencies in
which the principal of (and premium, if any) or interest on such Debt
Security is denominated or payable, or (e) reduce the amount of the
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or (f) reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or analogous provisions for any Debt
Security, or (g) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or (h) limit the
obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section
12.3, or (i) adversely affect the right to convert any Debt Security
into shares of Common Stock of the Company as may be provided pursuant
to Section 3.1;
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(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any 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;
(4) modify any of the provisions of this Section, Section
5.13 or Section 12.7, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Debt Security of each series affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 12.7, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.10 and 11.1(9); or
(5) modify the provisions of this Indenture with respect to
the subordination of the Outstanding Securities of any series in a
manner adverse to the Holders thereof.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt securities and Coupons, if any, of any other
series.
SECTION 11.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) 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 and that the supplemental indenture
conforms to the requirements of the Trust Indenture Act as then in effect. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a material way.
SECTION 11.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities and Coupons theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
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SECTION 11.5. 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 11.6. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities and Coupons, if any, of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities and Coupons of such series.
SECTION 11.7. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 11.2, the Company shall
transmit, in the manner and to the extent provided in Section 1.5, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE XII.
COVENANTS
SECTION 12.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Debt
Securities and Coupons, if any, that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities in
accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 3.1 with
respect to any series of Debt Securities or except as otherwise provided in
Section 3.6, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If so
provided in the terms of any series of Debt Securities established as provided
in Section 3.1, the interest, if any, due in respect of any temporary Global
Note or permanent Global Note, together with any additional amounts payable in
respect thereof, as provided in the terms and conditions of such Debt Security,
shall be payable only upon presentation of such Debt Security to the Trustee for
notation thereon of the payment of such interest.
SECTION 12.2. OFFICER'S CERTIFICATE AS TO DEFAULT.
Unless otherwise specifically provided for with respect to any series
of Debt Securities under Section 3.1, the Company will deliver to the Trustee,
on or before a date
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not more than four months after the end of each fiscal year of the Company
(which on the date hereof is the calendar year) ending after the date hereof, a
certificate of the principal executive officer, principal financial officer or
principal accounting officer of the Company stating whether or not to the best
knowledge of the signer thereof the Company is in compliance with all covenants
and conditions under this Indenture, and, if the Company shall be in default,
specifying all such defaults and the nature thereof of which such signer may
have knowledge. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 12.3. MAINTENANCE OF OFFICE OR AGENCY.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities of that series
that are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. If Debt Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City and State of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange or redemption, where notices and demands to or upon the
Company in respect of the Debt Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related Coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related Coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Debt Securities of that
series, if so provided pursuant to Section 3.1); provided, however, that if the
Debt Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Debt Securities of
that series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Debt Securities of that series
are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for exchange or redemption and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency.
No payment of principal, premium or interest on Bearer Securities shall
be made at any office or agency of the Company in the United States or by check
mailed to any
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address in the United States or by transfer to an account maintained with a bank
located in the United States; provided, however, that, if the Debt Securities of
a series are denominated and payable in Dollars, payment of principal of and any
premium and interest on any Bearer Security (including any additional amounts
payable on Securities of such series, if so provided pursuant to Section 3.1)
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City and State of New York, if (but only if) payment in Dollars
of the full amount of such principal, premium, interest or additional amounts,
as the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 12.4. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities and Coupons, if any, it will, on or
before each due date of the principal of (and premium, if any) or interest on
any of the Debt Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities and Coupons, it will, by 10:00 a.m. (New York
City time) or on each due date of the principal (and premium, if any) or
interest on any Debt Securities of such series, deposit with any such Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
Notwithstanding any term herein to the contrary, in no instance shall
the Trustee be under any duty or obligation (i) to maintain any office or to act
in any capacity as an agent for any purpose under this Indenture (or any
supplement hereto) outside the United States, or (ii) to act as a Paying Agent
in respect of any currency other than Dollars.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security or Coupon shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be transmitted in the manner and to the
extent provided by Section 1.5, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such notification, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 12.5. CORPORATE EXISTENCE.
Subject to Article X, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
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SECTION 12.6. PURCHASE OF DEBT SECURITIES BY COMPANY.
If the Debt Securities of a series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland and such stock exchange shall so
require, the Company will not purchase any Debt Securities of that series by
private treaty at a price (exclusive of expenses and accrued interest) which
exceeds 120% of the mean of the nominal quotations of the Debt Securities of
that series as shown in The Stock Exchange Daily Official List for the last
trading day preceding the date of purchase.
SECTION 12.7. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 12.5 and 12.6 (and, if so
specified pursuant to Section 3.1, any other covenant not set forth herein and
specified pursuant to Section 3.1 to be applicable to the Securities of any
series, except as otherwise provided pursuant to Section 3.1) with respect to
the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XIII.
REDEMPTION OF DEBT SECURITIES
SECTION 13.1. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before their Maturity
shall be redeemable in accordance with their terms and (except as otherwise
provided pursuant to Section 3.1 for Debt Securities of any series) in
accordance with this Article.
SECTION 13.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.3, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
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SECTION 13.3. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
Except in the case of a redemption in whole of the Bearer Securities or
the Registered Securities of such series, if less than all the Debt Securities
of any series are to be redeemed at the election of the Company, the particular
Debt Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.2 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.2 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 13.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, not less
than 30 days and not more than 60 days prior to the Redemption Date to the
Holders of Debt Securities of any series to be redeemed in whole or in part
pursuant to this Article XIII, in the manner provided in Section 1.5. Any notice
so given shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. Failure to give such notice, or any defect in
such notice to the Holder of any Debt Security of a series designated for
redemption, in whole or in part, shall not affect the sufficiency of any notice
of redemption with respect to the Holder of any other Debt Security of such
series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the
terms of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief
statement of the facts permitting such redemption,
(4) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date,
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price,
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section
3.5(b) or otherwise, the last date on which such exchanges may be made,
and
(9) that the redemption is for a sinking fund, if such is the
case.
SECTION 13.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (New York City time) on the Redemption Date
for any Debt Securities, 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 12.4) an amount of money in the
Currency or Currencies in which such Debt Securities are denominated (except as
provided pursuant to Section 3.1) sufficient to pay the Redemption Price of such
Debt Securities or any portions thereof which are to be redeemed on that date.
SECTION 13.6. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 3.1
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt
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Securities shall cease to bear interest. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 12.3)
and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of Coupons for such interest; and provided, further,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities which have a Stated Maturity on or prior to
the Redemption Date for such Debt Securities shall be payable according to the
terms of such Debt Securities and the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any Paying Agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless.
SECTION 13.7. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.1 (in the case of Registered
Securities) and at an office of the Trustee, or at such other office or agency
of the Company outside the United States as is specified pursuant to Section 3.1
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge, a new Debt
Security or Debt Securities of the same series, of like tenor and form, 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 of
the Debt Security so surrendered, and, in the case of a Coupon Security, with
appropriate Coupons attached. In the case of a Debt Security providing
appropriate space for such notation, at the option of the Holder thereof, the
Trustee, in lieu of delivering a new Debt Security or Debt Securities as
aforesaid, may make a notation on such Debt Security of the payment of the
redeemed portion thereof.
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ARTICLE XIV.
SINKING FUNDS
SECTION 14.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.1 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 14.2. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH
DEBT SECURITIES.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Debt Securities of such series which have been redeemed through
the application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value, provided that such Debt Securities shall not have been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 14.3. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.1) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section 14.2
and whether the Company intends to exercise its rights to make a permitted
optional sinking
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fund payment with respect to 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, the sinking fund payment due on the next succeeding sinking fund
payment date for such series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of the Debt Securities of such series
subject to a mandatory sinking fund payment without the right to deliver or
credit Debt Securities as provided in Section 14.2 and without the right to make
any optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (to the extent it is acting as a Paying Agent with respect to Dollars)
or other Paying Agent appointed by the Company (or by the Company if the Company
is acting as its own Paying Agent) 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 immediately following the date of such
payment) to the redemption of Debt Securities of such series at the Redemption
Price specified in such Debt Securities with respect to the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee (to the extent it
is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or by the Company if the Company is acting as its own
Paying Agent) to the redemption of Debt Securities shall be added to the next
sinking fund payment received by the Trustee (to the extent it is acting as a
Paying Agent with respect to Dollars) or other Paying Agent appointed by the
Company (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.4) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section. Any and all sinking fund moneys with respect to
the Debt Securities of any particular series held by the Trustee (to the extent
it is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.4) on the last sinking
fund payment date with respect to Debt Securities of such series and not held
for the payment or redemption of particular Debt Securities of such series shall
be applied by the Trustee (to the extent it is acting as a Paying Agent with
respect to Dollars) or other Paying Agent appointed by the Company (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 13.3 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.4. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.6.
On or before 10:00 a.m. (New York City time) on each sinking fund
payment date, the Company shall pay to the Trustee (to the extent it is acting
as a Paying Agent with respect to Dollars) or other Paying Agent appointed by
the Company (or, if the
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Company is acting as its own Paying Agent, the Company shall segregate and hold
in trust as provided in Section 12.4) in cash a sum, in the Currency or
Currencies in which Debt Securities of such series are denominated (except as
provided pursuant to Sections 3.1 or 3.10), equal to the principal and any
interest accrued to the Redemption Date for Debt Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee, any Paying Agent nor the Company shall redeem any
Debt Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt 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 the Debt Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee or applicable Paying Agent (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Debt Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such other
Paying Agent as provided above (or segregated by the Company) for that purpose
in accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund for 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 the Debt Securities and Coupons, if any, of such series;
provided, however, that in case such default or Event of Default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on
or prior to the next sinking fund payment date for the Debt Securities of such
series on which such moneys may be applied pursuant to the provisions of this
Section.
ARTICLE XV.
DEFEASANCE
SECTION 15.1. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.1, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.1 and subject to the proviso in the last sentence
of this paragraph) then the provisions of this Article shall be applicable
except as otherwise specified pursuant to Section 3.1 for Debt Securities of
such series. Defeasance provisions, if any, for Debt Securities denominated
and/or payable in a Foreign Currency or Currencies or for Bearer Securities may
be specified pursuant to Section 3.1; provided, however, that nothing herein or
therein shall obligate the Trustee (without its consent, at its sole option) to
hold or maintain any account, or act as Paying Agent with respect to, any
Foreign Currency or Currencies.
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SECTION 15.2. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Section 10.1 with respect to Debt Securities of any series (and, if
so specified pursuant to Section 3.1, any other obligation of the Company or
restrictive covenant added for the benefit of such series pursuant to Section
3.1) ("covenant defeasance option") at any time after the applicable conditions
set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations (as defined below) which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (iii) a combination of (i)
and (ii), sufficient, in the opinion (with respect to (i) and (ii)) of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including any
mandatory sinking fund payments) of and premium, if any, and interest
on, the Outstanding Debt Securities of such series on the dates such
installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with
respect to the Debt Securities of any series;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel or a letter or other document from
such exchange to the effect that the Company's exercise of its option
under this Section would not cause such Debt Securities to be delisted;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after such date;
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(6) the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling from the Internal Revenue Service to the effect
that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge; and
(7) no event or condition shall exist that, pursuant to the
provisions of Article XVII, would prevent the Company from making
payments of the principal of (and premium, if any) or interest on the
Securities of such series and coupons appertaining thereto on the date
of such deposit.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(6) or Section 5.1(7) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
Notwithstanding the Company's exercise of the covenant defeasance option, the
Company may subsequently exercise the legal defeasance option.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and interest on such Debt Securities when
such payments are due, (B) the Company's obligations with respect to the Debt
Securities of such series under Sections 3.4, 3.5, 3.6, 12.3 and 15.3 and (C)
the rights, powers, trusts, duties and immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States 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 the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
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SECTION 15.3. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.2 in respect of Debt Securities of a series shall be held
in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 15.4. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Debt Securities for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.2.
ARTICLE XVI.
CONVERSION
SECTION 16.1. APPLICABILITY; CONVERSION PRIVILEGE.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, the provisions of this Article XVI shall be applicable
to any Debt Securities that are convertible into Common Stock. If so provided
pursuant to Section 3.1 with respect to the Debt Securities of any series, the
Holder of a Debt Security of such series shall have the right, at such Holder's
option, to convert, in accordance with the terms of such series of Debt
Securities and this Article XVI, all or any part (in a denomination of, unless
otherwise specified pursuant to Section 3.1 with respect to Securities of such
series, $1,000 in principal amount or any integral multiple thereof) of such
Debt Security into shares of Common Stock or, as to any Debt Securities called
for redemption, at any time prior to the time and date fixed for such redemption
(unless the Company shall default in the payment of the Redemption Price, in
which case such right shall not terminate at such time and date).
SECTION 16.2. CONVERSION PROCEDURE; CONVERSION PRICE; FRACTIONAL
SHARES.
(a) Each Debt Security to which this Article is applicable shall be
convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified in pursuant to Section 3.1 with respect to the Debt
Securities of such
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series, into fully paid and nonassessable shares (calculated to the nearest
1/100th of a share) of Common Stock. The Debt Securities will be converted into
shares of Common Stock at the Conversion Price therefor. No payment or
adjustment shall be made in respect of dividends on the Common Stock or accrued
interest on a converted Debt Security except as described in Section 16.9. The
Company may, but shall not be required, in connection with any conversion of
Debt Securities, to issue a fraction of a share of Common Stock and, if the
Company shall determine not to issue any such fraction, the Company shall,
subject to Section 16.3(4), make a cash payment (calculated to the nearest cent)
equal to such fraction multiplied by the Closing Price of the Common Stock on
the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Debt Security duly
endorsed to the Company or in blank, or, in the case of Bearer Securities,
together with all unmatured Coupons and any matured Coupons in default attached
thereto, at the office of the Conversion Agent or at such other place or places,
if any, specified pursuant to Section 3.1 (in the case of Registered Securities)
and at an office of the Conversion Agent or at such other place or places, if
any, outside of the United States as is specified pursuant to Section 3.1 (in
the case of Bearer Securities), and shall give written notice to the Company at
said office or place that he elects to convert the same and shall state in
writing therein the principal amount of Debt Securities to be converted and the
name or names (with addresses) in which he wishes the certificate or
certificates for Common Stock to be issued; provided, however, that no Debt
Security or portion thereof shall be accepted for conversion unless the
principal amount of such Debt Security or such portion, when added to the
principal amount of all other Debt Securities or portions thereof then being
surrendered by the Holder thereof for conversion, exceeds the then effective
Conversion Price with respect thereto. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured Coupon or
Coupons in default, such conversion may be effected if the Bearer Securities to
be surrendered for conversion are accompanied by payment in funds acceptable to
the Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however that except as otherwise provided in Section 12.3, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an office or agency located outside the United States. If more
than one Debt Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares of Common Stock which shall be
deliverable upon conversion shall be computed on the basis of the aggregate
principal amount of the Debt Securities (or specified portions thereof to the
extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Debt Security, or to his nominee or
nominees, certificates for the number of full shares of Common Stock to which he
shall be entitled as aforesaid, together, subject to the last sentence of
paragraph (a) above, with cash in lieu of any fraction of a share to which he
would otherwise be entitled. The Company shall not be required to deliver
certificates
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for shares of Common Stock while the stock transfer books for such stock or the
Security Register are duly closed for any purpose, but certificates for shares
of Common Stock shall be issued and delivered as soon as practicable after the
opening of such books or Security Register. A Debt Security shall be deemed to
have been converted as of the close of business on the date of the surrender of
such Debt Security for conversion as provided above, and the Person or Persons
entitled to receive the Common Stock issuable upon such conversion shall be
treated for all purposes as the record Holder or Holders of such Common Stock as
of the close of business on such date. In case any Debt Security shall be
surrendered for partial conversion, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Debt Securities so surrendered, without charge to such Holder (subject to the
provisions of Section 16.8), a new Debt Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Debt Security.
SECTION 16.3. ADJUSTMENT OF CONVERSION PRICE FOR COMMON STOCK.
The Conversion Price with respect to any Debt Security which is
convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common Stock to holders of Common Stock, (ii)
combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iii) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (iv)
make a distribution in shares of Common Stock to holders of Common
Stock, then the Conversion Price in effect immediately before such
action shall be adjusted so that the Holders of such Debt Securities,
upon conversion thereof into Common Stock immediately following such
event, shall be entitled to receive the kind and amount of shares of
capital stock of the Company which they would have owned or been
entitled to receive upon or by reason of such event if such Debt
Securities had been converted immediately before the record dated (or,
if no record date, the effective date) for such event. An adjustment
made pursuant to this Section 16.3(1) shall become effective
retroactively immediately after the record date in the case of a
dividend or distribution and shall become effective retroactively
immediately after the effective date in the case of a subdivision or
combination. For the purposes of this Section 16.3(1), each Holder of
Debt Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution (provided
that if the kind or amount of securities receivable upon such dividend,
subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, issue rights or
warrants to all
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holders of shares of its Common Stock entitling them (for a period
expiring within 45 days after the record date for such issuance) to
subscribe for or purchase shares of Common Stock (or securities
convertible into shares of Common Stock) at a price per share less than
the Current Market Price of the Common Stock at such record date
(treating the price per share of the securities convertible into Common
Stock as equal to (x) the sum of (i) the price for a unit of the
security convertible into Common Stock and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), the Conversion Price
with respect to such Debt Securities shall be adjusted so that it shall
equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by
a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities
so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock outstanding on the date
of issuance of securities which the aggregate offering price of the
total number of shares of securities so offered for subscription or
purchase (or the aggregate purchase price of the convertible securities
so offered plus the aggregate amount of any additional consideration
initially payable upon conversion of such securities into Common Stock)
would purchase at such Current Market Price of the Common Stock. Such
adjustment shall become effective retroactively immediately after the
record date for the determination of shareholders entitled to receive
such rights or warrants.
(3) In the case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, distribute to
all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and the Common Stock is not
changed or exchanged) cash, evidences of its indebtedness, securities
or assets (excluding (i) regular periodic cash dividends in amounts, if
any, determined from time to time by the Board of Directors, (ii)
dividends payable in shares of Common Stock for which adjustment is
made under Section 16.3(1) or (iii) rights or warrants to subscribe for
or purchase securities of the Company (excluding those referred to in
Section 16.3(2))), then in each such case the Conversion Price with
respect to such Debt Securities determined by dividing the Conversion
Price in effect immediately prior to the date of such distribution by a
fraction, the numerator of which shall be the Current Market Price of
the Common Stock on the record date referred to below, and the
denominator of which shall be such Current Market Price of the Common
Stock less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of
the portion of the cash or assets or evidences of indebtedness or
securities so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (provided that such denominator
shall never be less than 1.0); provided however, that no adjustment
shall be made with respect to any distribution of rights to purchase
securities of the Company if a Holder of Debt
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Securities would otherwise be entitled to receive such rights upon
conversion at any time of such Debt Securities into Common Stock unless
such rights are subsequently redeemed by the Company, in which case
such redemption shall be treated for purposes of this section as a
dividend on the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination
of shareholders entitled to receive such distribution; and in the event
that such distribution is not so made, the Conversion Price shall again
be adjusted to the Conversion Price which would then be in effect if
such record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 16.3(1), 16.3(2), and 16.3(3), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income
tax purposes.
(5) In any case in which this Section 16.3 shall require that
any adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five (5) Trading Days following the filing of the statement referred to
in Section 16.5) issuing to the Holder of any Debt Securities converted
after such record date the shares of Common Stock and other capital
stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company issuable
upon such conversion on the basis of the Conversion Price prior to
adjustment; provided, however, that the Company shall deliver to such
Holder a due bill or other appropriate instrument evidencing such
Holder's right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(6) All calculations under this Section 16.3 shall be made to
the nearest cent or one-hundredth of a share of security, with one-half
cent and 0.005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 16.3, the Company
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lesser adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1%
in such price. Any adjustments under this Section 16.3 shall be made
successively whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 16.3, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Stock into which the Debt Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to
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adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common
Stock contained in subparagraphs (1) through (6) of this Section 16.3,
and the provisions of Sections 16.1, 16.2 and 16.4 through 16.9 with
respect to the Common Stock shall apply on like or similar terms to any
such other shares and the determination of the Board of Directors as to
any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section: (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Stock or (ii) subject to 16.3(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
SECTION 16.4. CONSOLIDATION OR MERGER OF THE COMPANY.
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Stock or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt Securities would have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XVI (and assuming such holder of Common Stock failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance (provided that, if the kind or amount of securities,
cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the
kind and amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 16.4. The provisions of this
Section 16.4 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
SECTION 16.5. NOTICE OF ADJUSTMENT.
Whenever an adjustment in the Conversion Price with respect to a series
of Debt Securities is required:
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(1) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.5. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
SECTION 16.6. NOTICE IN CERTAIN EVENTS.
In case:
(1) of a consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article XVI;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.5, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article XVI,
or, if a record is not to be taken, the date as of which the holders of record
or Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article XVI is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2), or (3) of
this Section.
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SECTION 16.7. COMPANY TO RESERVE STOCK; REGISTRATION; LISTING.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Debt Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt Securities
would be held by a single holder); provided, however, that nothing contained
herein shall preclude the Company from satisfying its obligations in respect of
the conversion of the Debt Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. The Company shall from time
to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be increased if
the aggregate of the authorized amount of the Common Stock remaining unissued
and the issued shares of such Common Stock in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Debt Securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority before such shares or securities may be issued upon
such conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Debt Securities prior to such
delivery upon the principal national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
SECTION 16.8. TAXES ON CONVERSION.
The Company shall pay any and all documentary, stamp or similar issue
or transfer taxes that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Debt Securities pursuant hereto. The
Company shall not, however, be required to pay any such tax which may be payable
in respect of any transfer involved in the issue or delivery of shares of Common
Stock or the portion, if any, of the Debt Securities which are not so converted
in a name other than that in which the Debt Securities so converted were
registered (in case of Registered Securities), and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of such tax or has established to the satisfaction of the
Company that such tax has been paid.
SECTION 16.9. CONVERSION AFTER RECORD DATE.
If any Debt Securities are surrendered for conversion subsequent to the
record date preceding an Interest Payment Date but on or prior to such Interest
Payment Date (except Debt Securities called for redemption on a Redemption Date
between such record date and Interest Payment Date), the Holder of such Debt
Securities at the close of business on such record date shall be entitled to
receive the interest payable on such
103
Debt Securities on such Interest Payment Date notwithstanding the conversion
thereof. Debt Securities surrendered for conversion during the period from the
close of business on any record date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall (except in the case
of Debt Securities which have been called for redemption on a Redemption Date
within such period) be accompanied by payment in New York Clearing House funds
or other funds and in the Currency acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the Debt Securities
being surrendered for conversion. Except as provided in this Section 16.9, no
adjustments in respect of payments of interest on Debt Securities surrendered
for conversion or any dividends or distributions of interest on the Common Stock
issued upon conversion shall be made upon the conversion of any Debt Securities.
SECTION 16.10. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to this Article is conclusive.
SECTION 16.11. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debt Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article. Each Conversion Agent
other than the Company shall have the same protection under this Section as the
Trustee.
ARTICLE XVII.
SUBORDINATION
SECTION 17.1. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting any Debt Securities
agrees, that, unless otherwise specified pursuant to Section 3.1 hereof with
respect to any series of Debt Securities, the indebtedness evidenced by the Debt
Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article XVII, to the prior payment in full of all Senior
Indebtedness, and that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness, without any act or
notice of acceptance hereof or reliance hereon.
SECTION 17.2. CERTAIN DEFINITIONS.
"Senior Indebtedness" means the principal, premium, if any, and
interest on (i) all indebtedness of the Company, whether outstanding on the date
hereof or thereafter created, incurred or assumed (including, without
limitation, such indebtedness issued or to be issued under the Company's Senior
Indenture dated _________, 200_), that is for borrowed money, or evidenced by a
note or similar instrument given in connection with the acquisition of any
business, properties or assets, including securities, (ii) any indebtedness of
any other Person of the kind described in the preceding clause (i) for the
104
payment of which the Company is responsible or liable as guarantor or otherwise
and (iii) amendments, modifications, renewals, extensions, deferrals and
refundings of any such indebtedness. Senior Indebtedness shall continue to be
Senior Indebtedness and to be entitled to the benefits of the subordination
provisions of this Article XVII irrespective of any amendment, modification or
waiver of any term of the Senior Indebtedness or extension or renewal of the
Senior Indebtedness. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include (A) indebtedness incurred for the purchase
of goods or materials or for services obtained in the ordinary course of
business and (B) any indebtedness which by its terms is expressly made pari
passu with or subordinated to the Securities.
SECTION 17.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY; ETC.
Unless otherwise specified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities, in the event of:
(1) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property;
(2) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings;
(3) any assignment by the company for the benefit of
creditors; or
(4) any other marshalling of the assets of the Company,
all Senior Indebtedness (including, without limitation, interest accruing after
the commencement of any such proceeding, assignment or marshalling of assets)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made by the Company on account of the
Debt Securities. In any such event, any payment or distribution, whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in the
subordination provisions of this Indenture with respect to the indebtedness
evidenced by the Debt Securities, to the payment of all Senior Indebtedness at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for the
provisions of this Article XVII) be payable or deliverable in respect of the
Debt Securities (including any such payment or distribution which may be payable
or deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities) shall be paid or delivered
directly to the holders of Senior Indebtedness, or to their representative or
trustee, in accordance with the priorities then existing among such holders
until all Senior Indebtedness shall have been paid in full.
SECTION 17.4. DEFAULT ON SENIOR INDEBTEDNESS.
Unless otherwise specified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities, if (i) the Company defaults in the payment of
any principal of (or premium, if any) or interest on any Senior Indebtedness
when the same becomes due and payable,
105
whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default occurs with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
and written notice of such event of default (requesting that payments on the
Debt Securities cease) is given to the Company by the holders of Senior
Indebtedness, then unless and until such default in payment or event of default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property or securities, by set-off or otherwise)
shall be made or agreed to be made on account of the Debt Securities or interest
thereon or in respect of any repayment, redemption, retirement, purchase or
other acquisition of the Debt Securities.
SECTION 17.5. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to the Trustee or any Holder at a time when a
Responsible Officer of the Trustee or such Holder has actual knowledge that
because of this Article XVII such distribution should not have been made to it,
the Trustee or such Holder who receives the distribution shall hold it in trust
for the benefit of, and, upon written request, shall pay it over to, the holders
of Senior Indebtedness as their interests may appear, or their agent or
representative or the trustee under the indenture or other agreement (if any)
pursuant to which Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of all principal, premium,
if any, and interest then payable with respect to any Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XVII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XVII, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
SECTION 17.6. NOTICE BY COMPANY.
The Company shall promptly notify in writing the Trustee and any Paying
Agent of any facts known to the Company that would cause a payment with respect
to the Debt Securities to violate this Article XVII, but failure to give such
notice shall not affect the subordination of the Debt Securities to the Senior
Indebtedness provided in this Article XVII.
SECTION 17.7. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. After
all Senior Indebtedness is paid in full and until the Debt Securities are paid
in full, Holders shall be subrogated (equally
106
and ratably with all other indebtedness as to which the right to receive payment
is pari passu with the Debt Securities) to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness to the
extent that distributions otherwise payable to the Holders have been applied to
the payment of Senior Indebtedness, and such payments or distributions received
by any Holder of Securities, by reason of such subrogation, of cash, securities
or other property which otherwise would be paid or distributed to the holders of
Senior Indebtedness, shall, as between the Company and its creditors other than
the holders of Senior Indebtedness, on the one hand, and the Holders of Debt
Securities, on the other, be deemed to be a payment by the Company on account of
Senior Indebtedness, and not on account of Debt Securities.
SECTION 17.8. RELATIVE RIGHTS.
This Article XVII defines the relative rights of Holders and holders of
Senior Indebtedness. Unless otherwise specified pursuant to Section 3.1 hereof
with respect to any series of Debt Securities, nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Debt Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article XVII to pay principal of
or interest on Debt Securities on the due date, the failure is still a Default
or Event of Default.
SECTION 17.9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness
constituting the Securities by any act or failure to act on the part of the
Company.
SECTION 17.10. DISTRIBUTION.
Upon any payment or distribution of assets of the Company referred to
in this Article XVII, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other Debt of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XVII.
107
SECTION 17.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article XVII or any other
provision of this Indenture, neither the Trustee nor any Paying Agent shall be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment or distribution by the Trustee or such Paying Agent, or
the taking of any action by the Trustee or such Paying Agent, and the Trustee or
such Paying Agent may continue to make payments on the Debt Securities unless,
in the case of the Trustee, and in the case of such Paying Agent as long as the
Trustee is such Paying Agent, a Responsible Officer shall have received at the
Corporate Trust Office of the Trustee, and in the case of a Paying Agent other
than the Trustee, it shall have received, in each case at least two Business
Days prior to the date of such payment, written notice of facts that would cause
any such payment with respect to the Securities to violate this Article XVII.
The Trustee or any Paying Agent, as applicable, shall promptly provide a copy of
such notice to the Holders. Nothing in this Article XVII shall limit the right
of the holders of Senior Indebtedness to recover payments as contemplated
elsewhere in this Article XVII or impair the claims of, or payments to, the
Trustee under or pursuant to Section 6.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee subject
to Trust Indenture Act Sections 310(b) and 311. Any Paying Agent may do the
same.
SECTION 17.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Debt Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XVII (to
the extent the same may be modified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities), and appoints the Trustee his attorney-in-fact
for any and all such purposes.
ARTICLE XVIII.
EXTENDED INTEREST PERIOD
SECTION 18.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debt Securities of any series, to defer payments of interest by extending
the interest payment period of such Debt Securities for an Extended Interest
Period not exceeding 20 consecutive quarters, during which Extended Interest
Period no interest shall be due and payable; provided that no Extended Interest
Period may extend beyond the Stated Maturity for the principal of the Debt
Securities of such series. At the end of the Extended Interest Period, the
Company shall calculate (and deliver such calculation to the Trustee) and pay on
the next Interest Payment Date all interest accrued and unpaid on the Debt
Securities of such series, including any Additional Payments and Additional
Interest (together, the "Deferred Payments") that shall be payable to the
Holders of Registered Securities of such series on the first Regular Record Date
after the end of the Extended Interest Period. Before the termination of any
Extended Interest Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of such Debt
Securities. Upon the termination of any Extended Interest Period and upon the
payment of all Deferred Payments then due, the Company may commence a new
Extended Interest Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extended Interest Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest and Additional Interest accrued during an Extended
Interest Period.
SECTION 18.2. NOTICE OF EXTENSION.
(a) The Company shall give the Holders of such Debt Securities and the
Trustee written notice of its selection of such Extended Interest Period at
least two Business Days before the earlier of (i) the next succeeding Interest
Payment Date; or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to The New York Stock Exchange,
Nasdaq or other applicable national exchange or self-regulatory organization or
to holders of the Debentures.
(b) The quarter in which any notice is given pursuant to paragraph (a)
of this Section 18.2 shall be counted as one of the 20 quarters permitted in the
maximum Extended Interest Period permitted under Section 18.1.
SECTION 18.3. LIMITATION ON TRANSACTIONS.
If (a) the Company shall exercise its right to defer payment of
interest as provided in Section 18.1; or (b) there shall have occurred any Event
of Default, then (i) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in common stock of the Company, or any declaration of
a non-cash dividend in connection with the implementation of a shareholder
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, and (B) purchases
of common stock of the Company related to the rights under any of the Company's
benefit plans for its directors, officers or employees); (ii) the Company shall
not make any payment of principal of (and premium, if any) or interest on or
repay, repurchase or redeem any debt securities issued by the Company which rank
pari passu with or junior in interest to the Debt Securities of a series issued
under this Indenture; provided, however, that notwithstanding the foregoing the
Company may make payments pursuant to its obligations under the applicable
Preferred Securities Guarantee; and (iii) the Company shall not redeem, purchase
or acquire less than all of the Outstanding Debt Securities of such series.
SECTION 18.4. APPLICABILITY OF ARTICLE.
Notwithstanding anything in this Indenture to the contrary, the
provisions of this Article XVIII only shall apply to Debt Securities of any
series to which this Article expressly is made applicable, as specified pursuant
to Section 3.1 for any such series of Debt Securities.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:
---------------------------------
Title:
-------------------------------
Attest:
- ------------------------
108
Title:
Seal
---------------------------
as Trustee
By:
------------------------
Title:
--------------------
Attest:
- ------------------------
Title:
Seal
109
STATE OF )
: ss.:
COUNTY OF )
On the day of , 200 , before me personally came , to
me known, who, being by me duly sworn, did depose and say that he or she resides
at ; that he or she is
of Reinsurance Group of America, Incorporated, one of the corporations described
in and which executed the foregoing instrument; that he or she knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed his or her name thereto by like
authority.
------------------------
Notary Public
SEAL
STATE OF )
: ss.:
COUNTY OF )
On the day of , 200 , before me personally came
to me known, who, being by me duly sworn, did depose
and say that he or she resides at ; that he or she is of , one of the
corporations described in and which executed the foregoing instrument; that he
or she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he or she signed his or her
name thereto by like authority.
------------------------
Notary Public
SEAL
110
EXHIBIT A
[FORMS OF CERTIFICATION]
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof and except as set forth
below principal amount of the above captioned Debt Securities held by you for
our account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its
own behalf or through its agent, that you may advise the Company or the
Company's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code, as amended, and the Treasury regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Debt Securities is a United
States or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)) this is to further certify that
such financial institution has not acquired the Debt Securities for the purpose
of resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the beneficial
interest in the temporary global Debt Securities held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to principal
amount of Debt Securities held by you for our account as to which we are not
able to provide a certificate in this form. We understand that exchange of such
portion of the temporary global Note for definitive Bearer Securities or
interests in a permanent global Note cannot be made until we are able to provide
a certificate in this form.
111
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated: , 2000
------------------------ -
[To be dated no earlier than the
10th day before the Exchange Date]
By:
---------------------------
As, or as agent for, the
beneficial
owner(s) of the
portion of the
temporary global
Note to which this
certificate relates.
112
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR AND
CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL NOTE]
CERTIFICATE
------------------------
[Insert title or sufficient description
of Securities to be delivered]
The undersigned certifies that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof,
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not United States person(s) (as defined below), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury regulations) ("financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Company or the Company's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Code, and the Treasury
regulations thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Debt Securities for the
purpose of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary Global Note excepted in
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange or collection of any interest are no longer
true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax laws and regulations of the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be
113
relevant, we irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States and any estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"United States" means the United States of America (including the States and the
District of Columbia) and its "possessions" which include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
Dated : , 19
------------------------ --
[To be dated no earlier than the
Exchange Date]
By:
------------------------
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-Clear
System] [CEDEL, S.A.]
114
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 200
---- -- -
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
ss.310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.8, 6.10
(c) Not Applicable
ss.311 (a) 6.13(a)
(b) 6.13(b)
(c) Not Applicable
ss.312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
ss.313 (a) 7.3(a)
(b) 7.3(b)
(c) 7.3(a),
7.3(c)
(d) 7.3(d)
ss.314 (a) 7.4, 12.2
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
ss.315 (a) 6.1(a),
6.1(c)
(b) 6.2, 7.3(a)(7)
(c) 6.1(b)
(d)(1) 6.1(a)
(d)(2) 6.1(c)(2)
(d)(3) 6.1(c)(3)
(e) 5.14
ss.316 (a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) Not Applicable
ss.317 (a)(1) 5.3
(a)(2) 5.4
(b) 12.4
ss.318 1.6
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
115
EXHIBIT 4.3
REINSURANCE GROUP OF AMERICA, INCORPORATED
To
The Bank of New York,
as Trustee
-----------------
Junior Subordinated Indenture
Dated as of December 18, 2001
TABLE OF CONTENTS
Page
ARTICLE I...............................................................................1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.......................................................1
Section 1.1. Definitions..................................................1
Section 1.2. Compliance Certificates and Opinions........................14
Section 1.3. Form of Documents Delivered to Trustee......................15
Section 1.4. Notices, etc., to Trustee and Company.......................16
Section 1.5. Notice to Holders; Waiver...................................16
Section 1.6. Conflict with Trust Indenture Act...........................17
Section 1.7. Effect of Headings and Table of Contents....................17
Section 1.8. Assignment; Successors and Assigns..........................17
Section 1.9. Separability Clause.........................................17
Section 1.10. Benefits of Indenture......................................17
Section 1.11. Governing Law..............................................17
Section 1.12. Legal Holidays.............................................17
Section 1.13. No Security Interest Created...............................18
Section 1.14. Liability Solely Corporate.................................18
Section 1.15. Treatment of Debt Securities as Debt.......................18
ARTICLE II.............................................................................19
DEBT SECURITY FORMS......................................................19
Section 2.1. Forms Generally.............................................19
Section 2.2. Form of Trustee's Certificate of Authentication.............19
Section 2.3. Securities in Global Form...................................20
ARTICLE III............................................................................20
THE DEBT SECURITIES......................................................20
Section 3.1. Amount Unlimited; Issuable in Series........................20
Section 3.2. Denominations...............................................24
Section 3.3. Execution, Authentication, Delivery and Dating..............25
Section 3.4. Temporary Debt Securities; Global
Notes Representing Registered Securities.........................26
Section 3.5. Registration, Transfer and Exchange.........................29
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities.......30
Section 3.7. Payment of Interest; Interest Rights Preserved..............31
Section 3.8. Cancellation................................................32
Section 3.9. Computation of Interest.....................................33
Section 3.10. Currency of Payments in Respect of Debt Securities.........33
i
Section 3.11. Additional Payments........................................36
Section 3.12. Exchange Upon Default......................................37
ARTICLE IV.............................................................................37
SATISFACTION AND DISCHARGE...............................................37
Section 4.1. Satisfaction and Discharge of Indenture.....................37
Section 4.2. Application of Trust Money..................................38
ARTICLE V..............................................................................39
REMEDIES.................................................................39
Section 5.1. Events of Default...........................................39
Section 5.2. Acceleration of Maturity; Rescission and Annulment..........40
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.......................................................41
Section 5.4. Trustee May File Proofs of Claim............................42
Section 5.5. Trustee May Enforce Claims Without Possession of
Debt Securities..................................................43
Section 5.6. Application of Money Collected..............................43
Section 5.7. Limitation on Suits.........................................43
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest.............................................44
Section 5.9. Restoration of Rights and Remedies..........................44
Section 5.10. Rights and Remedies Cumulative.............................45
Section 5.11. Delay or Omission Not Waiver...............................45
Section 5.12. Control by Holders.........................................45
Section 5.13. Waiver of Past Defaults....................................45
Section 5.14. Undertaking for Costs......................................46
Section 5.15. Waiver of Stay or Extension Laws...........................46
ARTICLE VI.............................................................................47
THE TRUSTEE..............................................................47
Section 6.1. Certain Duties and Responsibilities.........................47
Section 6.2. Notice of Defaults..........................................48
Section 6.3. Certain Rights of Trustee...................................48
Section 6.4. Not Responsible for Recitals or Issuance of Debt
Securities.......................................................49
Section 6.5. May Hold Debt Securities....................................50
Section 6.6. Money Held in Trust.........................................50
Section 6.7. Compensation and Reimbursement..............................50
Section 6.8. Disqualification; Conflicting Interests.....................51
Section 6.9. Corporate Trustee Required; Eligibility.....................56
Section 6.10. Resignation and Removal; Appointment of
Successor........................................................57
ii
Section 6.11. Acceptance of Appointment by Successor.....................58
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business.........................................................59
Section 6.13. Preferential Collection of Claims Against Company..........60
Section 6.14. Appointment of Authenticating Agent........................63
ARTICLE VII............................................................................65
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................65
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders..........................................................65
Section 7.2. Preservation of Information; Communication to Holders.......65
Section 7.3. Reports by Trustee..........................................67
Section 7.4. Reports by Company..........................................68
ARTICLE VIII...........................................................................69
CONCERNING THE HOLDERS...................................................69
Section 8.1. Acts of Holders.............................................69
Section 8.2. Proof of Ownership; Proof of Execution of
Instruments by Holder............................................70
Section 8.3. Persons Deemed Owners.......................................70
Section 8.4. Revocation of Consents; Future Holders Bound................71
ARTICLE IX.............................................................................71
HOLDERS' MEETINGS........................................................71
Section 9.1. Purposes of Meetings........................................71
Section 9.2. Call of Meetings by Trustee.................................72
Section 9.3. Call of Meetings by Company or Holders......................72
Section 9.4. Qualifications for Voting...................................72
Section 9.5. Regulations.................................................72
Section 9.6. Voting......................................................73
ARTICLE X..............................................................................73
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE.........................................................73
Section 10.1. Company May Consolidate, etc., Only on Certain
Terms............................................................73
Section 10.2. Successor Corporation Substituted..........................74
ARTICLE XI.............................................................................74
iii
SUPPLEMENTAL INDENTURES..................................................74
Section 11.1. Supplemental Indentures Without Consent of
Holders..........................................................74
Section 11.2. Supplemental Indentures With Consent of Holders............76
Section 11.3. Execution of Supplemental Indentures.......................77
Section 11.4. Effect of Supplemental Indentures..........................77
Section 11.5. Conformity with Trust Indenture Act........................77
Section 11.6. Reference in Debt Securities to Supplemental
Indentures.......................................................78
Section 11.7. Notice of Supplemental Indenture...........................78
ARTICLE XII............................................................................78
COVENANTS................................................................78
Section 12.1. Payment of Principal, Premium and Interest.................78
Section 12.2. Officer's Certificate as to Default........................78
Section 12.3. Maintenance of Office or Agency............................79
Section 12.4. Money for Debt Securities; Payments To Be Held in
Trust............................................................79
Section 12.5. Corporate Existence........................................80
Section 12.6. Covenants as to the RGA Capital Trusts.....................81
Section 12.7. Waiver of Certain Covenants................................81
Section 12.8. Covenants as to Purchases..................................81
Section 12.9. Original Issue Discount....................................82
Section 12.10. Certain Restrictions......................................82
ARTICLE XIII...........................................................................82
REDEMPTION OF DEBT SECURITIES............................................82
Section 13.1. Applicability of Article...................................82
Section 13.2. Election to Redeem; Notice to Trustee......................83
Section 13.3. Selection by Trustee of Debt Securities to Be
Redeemed.........................................................83
Section 13.4. Notice of Redemption.......................................83
Section 13.5. Deposit of Redemption Price................................84
Section 13.6. Debt Securities Payable on Redemption Date.................85
Section 13.7. Debt Securities Redeemed in Part...........................85
Section 13.8. Special Event Redemption...................................85
ARTICLE XIV............................................................................86
SINKING FUNDS............................................................86
Section 14.1. Applicability of Article...................................86
Section 14.2. Satisfaction of Mandatory Sinking Fund Payments
with Debt Securities.............................................86
Section 14.3. Redemption of Debt Securities for Sinking Fund.............87
iv
ARTICLE XV.............................................................................89
DEFEASANCE...............................................................89
Section 15.1. Applicability of Article...................................89
Section 15.2. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations...........................................89
Section 15.3. Deposited Moneys and U.S. Government Obligations
to Be Held In Trust..............................................91
Section 15.4. Repayment to Company.......................................91
ARTICLE XVI............................................................................92
CONVERSION...............................................................92
Section 16.1. Applicability; Conversion Privilege........................92
Section 16.2. Conversion Procedure; Conversion Price;
Fractional Shares................................................92
Section 16.3. Adjustment of Conversion Price for Common Stock............93
Section 16.4. Consolidation or Merger of the Company.....................96
Section 16.5. Notice of Adjustment.......................................97
Section 16.6. Notice in Certain Events...................................97
Section 16.7. Company to Reserve Stock; Registration; Listing............98
Section 16.8. Taxes on Conversion........................................99
Section 16.9. Conversion After Record Date...............................99
Section 16.10. Company Determination Final...............................99
Section 16.11. Trustee's Disclaimer......................................99
ARTICLE XVII..........................................................................100
SUBORDINATION...........................................................100
Section 17.1. Agreement to Subordinate..................................100
Section 17.2. Certain Definitions.......................................100
Section 17.3. Liquidation; Dissolution; Bankruptcy; etc.................100
Section 17.4. Default on Senior Indebtedness............................101
Section 17.5. When Distribution Must be Paid Over.......................101
Section 17.6. Notice by Company.........................................102
Section 17.7. Subrogation...............................................102
Section 17.8. Relative Rights...........................................102
Section 17.9. Subordination May Not Be Impaired By Company..............103
Section 17.10. Distribution.............................................103
Section 17.11. Rights of Trustee and Paying Agent.......................103
Section 17.12. Authorization to Effect Subordination....................104
ARTICLE XVIII.........................................................................104
EXTENDED INTEREST PERIOD................................................104
Section 18.1. Extension of Interest Payment Period......................104
v
Section 18.2. Notice of Extension.......................................104
Section 18.3. Limitation on Transactions................................105
Section 18.4. Applicability of Article..................................105
ARTICLE XIX...........................................................................106
RIGHT OF DIRECT ACTION; SETOFF..........................................106
Section 19.1. Acknowledgement of Rights; Right of Setoff................106
vi
JUNIOR SUBORDINATED INDENTURE dated as of December 18, 2001,
(hereinafter the "Indenture") between REINSURANCE GROUP OF AMERICA,
INCORPORATED, a Missouri corporation (hereinafter called the "Company"), having
its principal executive office at 1370 Timberlake Manor Parkway, Chesterfield,
Missouri 63017-6039 and The Bank of New York, a New York banking corporation
(hereinafter called the "Trustee"), having its principal office at 101 Barclay
Street, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its junior
subordinated debentures, notes, bonds or other evidences of indebtedness (herein
generally called the "Debt Securities"), to be issued in one or more series, as
in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Debt Securities or of Debt
Securities of any series, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles or as provided with respect to any series of Debt
Securities, and, except as otherwise herein provided or as provided
with respect to any series of Debt Securities, the term "generally
accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder with respect to
any series of Debt Securities, shall mean such as set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as have been approved by a
significant segment of the accounting profession which are in effect as
of the issuance date of such series of Debt Securities; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article III or Article VI, are defined in
those respective Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 8.1.
"Additional Interest" shall have the meaning set forth in
Section 5.2.
"Additional Payments" shall have the meaning set forth in
Section 3.11.
"Administrative Trustee" shall have the meaning set forth in
the applicable Trust Agreement.
"Additional Taxes" means any additional taxes, duties and
other governmental charges to which the applicable RGA Capital Trust
has become subject from time to time as a result of a Tax Event.
"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" as used with respect to any Person shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise, provided that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by"
and "under common control with" shall have correlative meanings.
"Authenticating Agent" has the meaning specified in Section
6.14.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act
hereunder or any director or directors and/or officer or officers of
the
2
Company to whom that board or committee shall have delegated its
authority.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in
the Debt Securities means any day which is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust
companies in that Place of Payment or other location are authorized or
obligated by law to close, except as otherwise specified pursuant to
Section 3.1.
"Closing Price" of the Common Stock shall mean the last
reported sale price of such stock (regular way) as shown on the
Composite Tape of the New York Stock Exchange (or, if such stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which such stock is listed or
admitted to trading), or, in case no such sale takes place on such day,
the average of the closing bid and asked prices on the New York Stock
Exchange (or, if such stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange
on which such stock is listed or admitted to trading), or, if it is not
listed or admitted to trading on any national securities exchange, the
average of the closing bid and asked prices as reported in The Nasdaq
Stock Market, or if such stock is not so reported, the average of the
closing bid and asked prices as furnished by any member of the National
Association of Securities Dealers, Inc., selected from time to time by
the Company for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Securities" means undivided beneficial interests in
the assets of the applicable RGA Capital Trust which rank pari passu
with the Preferred Securities issued by such RGA Capital Trust;
provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of (i)
distributions, and (ii) payments upon liquidation, redemption and
otherwise, are subordinated to the rights of holders of Preferred
Securities.
3
"Common Stock" shall mean the class of Common Stock, par value
$.01 per share, of the Company authorized at the date of this Indenture
as originally signed, or any other class of stock resulting from
successive changes or reclassifications of such Common Stock, and in
any such case including any shares thereof authorized after the date of
this Indenture, and any other shares of stock of the Company which do
not have any priority in the payment of dividends or upon liquidation
over any other class of stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer,
the Chief Operating Officer or a Vice President and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to
the Trustee.
"Component Currency" has the meaning in Section 3.10(i).
"Conversion Agent" means any Person authorized by the Company
to receive Debt Securities to be converted into Common Stock on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Debt Securities on its behalf. The Company may
at any time from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect
to any series of Debt Securities issued under this Indenture.
"Conversion Date" has the meaning specified in Section
3.10(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued
such Currency and for the settlement of transactions by public
institutions of or within the international banking community, (ii) the
ECU to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or (iii) any Currency unit other than the ECU to
be used for the purposes for which it was established. Notwithstanding
any term herein, or in any supplement hereto, to the contrary, in no
instance shall the Trustee be under any duty or obligation to determine
or monitor whether a Conversion Event has occurred. Upon receipt by the
Trustee of an Officers' Certificate of the Company certifying to the
effect that a Conversion Event has occurred, the Trustee shall be
entitled to rely exclusively thereon without independent investigation
on its part.
4
"Conversion Price" means, with respect to any series of Debt
Securities which are convertible into Common Stock, the price per share
of Common Stock at which the Debt Securities of such series are so
convertible pursuant to Section 3.1 with respect to such series, as the
same may be adjusted from time to time in accordance with Section 16.3.
"Conversion Request" means (a) the irrevocable request to be
given by a Holder of Debt Securities of a series that by its terms is
convertible into Common Stock, as specified pursuant to Section 3.1
hereof, directing the Conversion Agent to convert such Debt Securities
into shares of Common Stock, and (b) the irrevocable request to be
given by a holder of the Preferred Securities of the applicable RGA
Capital Trust to the Conversion Agent directing the Conversion Agent to
exchange such Common Stock for such Preferred Securities on behalf of
such holder.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this instrument is located at 101 Barclay Street, 21st
Floor, New York, New York 10286, Attention: Corporate Trust
Administration Department.
"Corporation" includes corporations, limited liability
companies, limited partnerships, associations, companies and business
trusts.
"Currency" means Dollars or Foreign Currency.
"Currency Determination Agent" means the New York Clearing
House bank, if any, from time to time selected by the Company for
purposes of Section 3.10; provided that such agent shall accept such
appointment in writing and the terms of such appointment shall be
acceptable to the Company and shall, in the opinion of the Company and
the Trustee at the time of such appointment, require such agent to make
the determinations required by this Indenture by a method consistent
with the method provided in this Indenture for the making of such
decision or determination.
"Current Market Price" on any date shall mean the average of
the daily Closing Prices per share of Common Stock for any thirty (30)
consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not
commence more than forty-five (45) Trading Days prior to the day in
question; provided that with respect to Section 16.3(3), the "Current
Market Price" of the Common Stock shall mean the average of the daily
Closing Prices per share of Common Stock for the five (5) consecutive
5
Trading Days ending on the date of the distribution referred to in
Section 16.3(3) (or if such date shall not be a Trading Day, on the
Trading Day immediately preceding such date).
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities
(including any Global Notes) authenticated and delivered under this
Indenture.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Deferred Payments" has the meaning specified in Section 18.1.
"Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to
Section 3.1 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter. "Depositary" shall mean or include each Person who is then
a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Debt Securities of any
series shall mean the Depositary with respect to the Debt Securities of
that series.
"Discharged" has the meaning specified in Section 15.2.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of
the Code (or any successor provision) and the regulations thereunder.
"Dissolution Event" means that as a result of the occurrence
and continuation of a Special Event, the applicable RGA Capital Trust
is to be dissolved in accordance with the applicable Trust Agreement
and the Debentures held by the Property Trustee are to be distributed
to the holders of the Trust Securities issued by such Trust pro rata in
accordance with the Trust Agreement.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 3.10(h).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 3.10(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
6
"Election Date" has the meaning specified in Section 3.10(i).
"Euro-clear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, or its successor as operator of the
Euro-clear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Election Date" has the meaning specified in Section 3.10(i).
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Rate Officer's Certificate" means a telex or a
certificate setting forth (i) the applicable Market Exchange Rate and
(ii) the Dollar, Foreign Currency or Currency unit amounts of
principal, premium, if any, and any interest respectively (on an
aggregate basis and on the basis of a Debt Security having the lowest
denomination principal amount determined in accordance with Section 3.2
in the relevant Currency or Currency unit), payable on the basis of
such Market Exchange Rate sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer or any Assistant Treasurer
of the Company.
"Extended Interest Period" has the meaning specified in
Section 3.1.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate.
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically
by reference to an interest rate index or any other index specified
pursuant to Section 3.1.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or
currency unit the value of which is determined by reference to the
values of the currencies of any group of countries.
"Global Note" means a Registered Security evidencing all or
part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
7
"Holder" means, with respect to a Registered Security, the
Registered Holder.
"Indenture" means this Junior Subordinated Indenture as
originally executed, or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and, unless the context
otherwise requires, shall include the terms of a particular series of
Debt Securities as established pursuant to Section 3.1.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only on a certain date,
means interest payable after such date, if so provided pursuant to
Section 3.1.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt
Security; provided, that (if it is provided pursuant to Section 3.1
that Article XVIII shall apply to the Debt Securities of such series)
an Interest Payment Date may be extended pursuant to Section 18.1, in
which event such Stated Maturity as so extended shall be an Interest
Payment Date.
"Investment Company Act" means the Investment Company Act of
1940, as amended, as in effect at the date of execution of this
instrument.
"Investment Company Event" means the receipt by the applicable
RGA Capital Trust of an Opinion of Counsel, rendered by a law firm
having a recognized tax and securities law practice, to the effect
that, as a result of the occurrence of a change in law or regulation or
a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), such RGA Capital Trust is or shall be
considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the Preferred
Securities under the applicable Trust Agreement.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt Security or an installment
of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call
for redemption, repayment or repurchase at the option of the Holder
thereof or otherwise.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant Currency unit and
Dollars or such Foreign Currency calculated by the method specified
8
pursuant to Section 3.1 for the securities of the relevant series, (ii)
for any conversion of Dollars into any Foreign Currency, the noon (New
York City time) buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by
the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot
rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for
Dollars or such purchased Foreign Currency. In the event of the
unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii) the Currency Determination Agent,
if any, or if there shall not be a Currency Determination Agent, then
the Trustee, shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of
the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such
Currency or Currency unit in question, or such other quotations as the
Currency Determination Agent or the Trustee, as the case may be, shall
deem appropriate. Unless otherwise specified by the Currency
Determination Agent, if any, or if there shall not be a Currency
Determination Agent, then by the Trustee, if there is more than one
market for dealing in any Currency or Currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in
respect of such Currency or Currency unit shall be that upon which a
nonresident issuer of securities designated in such Currency or
Currency unit would purchase such Currency or Currency unit in order to
make payments in respect of such securities.
"Officers' Certificate" means a certificate signed by the
Chairman, a Vice Chairman, the President, the Chief Financial Officer
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company)
and who shall be satisfactory to the Trustee, which is delivered to the
Trustee.
"Outstanding" when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
9
(ii) Debt Securities for whose redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Debt Securities; provided,
however, that if such Debt Securities are to be redeemed notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made and the date for
such redemption has passed; and
(iii) Debt Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company; provided, however,
that in determining whether the Holders of the requisite principal
amount of Debt Securities Outstanding have performed any Act hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding (provided, that
in connection with any offer by the Company or any obligor to purchase
Debt Securities, Debt Securities tendered by a Holder shall be
Outstanding until the date of purchase), except that, (i) in
determining whether the Trustee shall be protected in relying upon any
such Act, only Debt Securities which the Trustee knows to be so owned
shall be so disregarded and (ii) the foregoing shall not apply at any
time when all of the Outstanding Debt Securities are owned by the
Company, the Trustee and/or any such Affiliate. Debt Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right to act with respect to such Debt Securities
and that the pledgee is not the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other
obligor. In determining whether the Holders of the requisite principal
amount of Outstanding Debt Securities have performed any Act hereunder,
the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purpose 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 of the Maturity
thereof pursuant to Section 5.2 and the principal amount of a Debt
Security denominated in a Foreign Currency that shall be deemed to be
Outstanding for such purpose shall be the amount calculated pursuant to
Section 3.10(k).
"Overdue Rate" when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to
the Board Resolution or the supplemental indenture, as the case may be,
relating to such series as contemplated by Section 3.1.
10
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt
Securities on behalf of the Company.
"Permanent Global Note" shall have the meaning given such term
in Section 3.4(b).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal
of (and premium, if any) and interest on the Debt Securities of that
series are payable as specified pursuant to Section 3.1.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and
delivered under Section 3.6 in lieu of a mutilated, lost, destroyed or
stolen Debt Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Debt Security.
"Preferred Securities" means undivided beneficial interests in
the assets of the applicable RGA Capital Trust which rank pari passu
with Common Securities issued by such RGA Capital Trust; provided,
however, that upon the occurrence of an Event of Default, the rights of
holders of Common Securities to payment in respect of (i)
distributions, and (ii) payments upon liquidation, redemption and
otherwise, are subordinated to the rights of holders of Preferred
Securities.
"Preferred Securities Guarantee" means any guarantee that the
Company may enter into with the Trustee or other Persons that operates
directly or indirectly for the benefit of holders of Preferred
Securities issued by the applicable RGA Capital Trust.
"Property Trustee" means the entity performing the function of
the Property Trustee under the Trust Agreement of the applicable RGA
Capital Trust.
"Redemption Date" means (i) the date fixed for redemption of
any Debt Security pursuant to this Indenture which, in the case of a
Floating Rate Security, unless otherwise specified pursuant to Section
3.1, shall be an Interest Payment Date only or (ii) with respect to
events described in Section 13.8, the date fixed for payment of any
Special Redemption Price.
11
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of
the Redemption Date upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, and in the case of any other Debt
Security, the principal amount thereof, plus, in each case, premium, if
any, and accrued and unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 2.1 which is registered as to principal
and interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means
the date specified for that purpose pursuant to Section 3.1 for such
Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any vice president, the secretary, any assistant secretary or any
assistant vice president or any other officer of the Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"RGA Capital Trust" means such statutory business trust
created under the laws of Delaware specified in a Board Resolution of
the Company establishing a particular series of Debentures pursuant to
Section 3.1 hereof.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5(a).
"Senior Indebtedness" has the meaning specified in Section
17.2.
"Special Event" means a Tax Event or an Investment Company
Event.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Special Redemption Price" has the meaning specified in
Section 13.8.
"Specified Amount" has the meaning specified in Section
13.10(i).
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"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest
thereon means the date specified in such Debt Security, as the date on
which the principal of such Debt Security or such installment of
principal, premium or interest is due and payable.
"Subsidiary" means, with respect to any specified Person, (i)
any corporation, association, or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such Person
or one or more Subsidiaries of such Person (or any combination
thereof).
"Tax Event" means the receipt by the applicable RGA Capital
Trust of an Opinion of Counsel, rendered by a law firm having a
recognized tax and securities practice, to the effect that, as a result
of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under the applicable Trust Agreement, there is more than an
insubstantial risk that (i) such RGA Capital Trust is, or shall be
within 90 days after the date of such Opinion of Counsel, subject to
United States federal income tax with respect to income received or
accrued on the Debt Securities; (ii) interest payable by the Company on
the Debt Securities is not, or within 90 days after the date of such
Opinion of Counsel, shall not be, deductible by the Company, in whole
or in part, for United States federal income tax purposes; or (iii)
such RGA Capital Trust is, or shall be within 90 days after the date of
such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties, assessments or other governmental charges. An RGA
Capital Trust or the Company shall request and receive such Opinion of
Counsel with regard to such matters within a reasonable period of time
after such RGA Capital Trust or the Company shall have become aware of
any of the events described in clauses (i) through (iii) above.
"Trading Day" shall mean, with respect to the Common Stock, so
long as the Common Stock is listed or admitted to trading on the New
York Stock Exchange, a day on which the New York Stock Exchange is open
for the transaction of business, or, if the Common Stock is not listed
or admitted to trading on the New York Stock Exchange, a day on
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which the principal national securities exchange on which the Common
Stock is listed is open for the transaction of business, or, if the
Common Stock is not so listed or admitted for trading on any national
securities exchange, a day on which The Nasdaq Stock Market is open for
the transaction of business.
"Trust Agreement" means the Amended and Restated Trust
Agreement of a particular RGA Capital Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Debt Securities of any
series shall mean the Trustee with respect to Debt Securities of such
series.
"Trust Indenture Act" 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 11.5.
"Trust Securities" means the applicable Common Securities and
Preferred Securities, collectively.
"United States" means the United States of America (including
the States and the District of Columbia), and its possessions, which
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands.
"U.S. Government Obligations" has the meaning specified in
Section 15.2.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 3.10(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case
may be, whether or not designated by a number or word or words added
before or after the title "Vice President."
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this
14
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 12.2) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
15
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid or airmail postage prepaid if sent from outside the United
States, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, to the
attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English language, except
that any published notice may be in an official language of the country of
publication.
SECTION 1.5. NOTICE TO HOLDERS; WAIVER.
When this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Registered Holders (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to such Registered Holders as their names and addresses appear in the
Security Register, within the time prescribed; provided, however, that, in any
case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 3.1, shall be sufficiently given if given in the manner
specified pursuant to Section 3.1.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
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 on such waiver. 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, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given. In any case
where notice to
16
Holders is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect
to other Holders, and any notice which is published in the manner herein
provided shall be conclusively presumed to have been duly given.
SECTION 1.6. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with the duties
imposed on any person by the provisions of Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control.
SECTION 1.7. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.8. ASSIGNMENT; SUCCESSORS AND ASSIGNS.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. All
covenants and agreements in this Indenture by the parties hereto shall bind
their respective successors and assigns and inure to the benefit of their
permitted successors and assigns, whether so expressed or not.
SECTION 1.9. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 1.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders (and
with respect to the provisions of Article XVII, the holders of Senior
Indebtedness), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.11. GOVERNING LAW.
This Indenture and the Debt Securities shall be governed by and
construed in accordance with the internal laws of the State of New York.
SECTION 1.12. LEGAL HOLIDAYS.
Unless otherwise specified pursuant to Section 3.1 or in any Debt
Security, in any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security of any series shall not be a Business Day at any
Place of Payment for the Debt Securities of that series, then (notwithstanding
any other provision of this Indenture
17
or of the Debt Securities) payment of principal (and premium, if any) or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date or at the
Stated Maturity, and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such payment is made or
duly provided for on such Business Day.
SECTION 1.13. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Debt Securities, express or
implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect in any jurisdiction where property of the Company or its Subsidiaries is
or may be located.
SECTION 1.14. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest on any Debt Securities, or any part thereof, or of
the indebtedness represented thereby, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, or against any
shareholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Debt Securities are solely corporate obligations, and that
no personal liability whatsoever shall attach to, or be incurred by, any such
incorporator, shareholder, officer or director, past, present or future, of the
Company (or any incorporator, shareholder, officer or director of any such
predecessor or successor corporation), either directly or indirectly through the
Company or any such predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in any of the
Debt Securities or to be implied herefrom or therefrom; and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issue of Debt Securities; provided, however, that nothing herein or in the Debt
Securities contained shall be taken to prevent recourse to and the enforcement
of the liability, if any, of any shareholder or subscriber to capital stock upon
or in respect of the shares of capital stock not fully paid.
SECTION 1.15. TREATMENT OF DEBT SECURITIES AS DEBT.
It is intended that the Debt Securities shall be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
18
ARTICLE II.
DEBT SECURITY FORMS
SECTION 2.1. FORMS GENERALLY.
The Debt Securities of each series shall be substantially in one of the
forms (including global form) established in or pursuant to a Board Resolution
or one or more indentures supplemental hereto, and shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange or self-regulatory organization on or in which any
series of the Debt Securities may be listed or included, or to conform to usage,
all as determined by the officers executing such Debt Securities as conclusively
evidenced by their execution of such Debt Securities. If the form of a series of
Debt Securities (or any Global Note) is established in or pursuant to a Board
Resolution, a copy of such Board Resolution shall be delivered to the Trustee,
together with an Officers' Certificate setting forth the form of such series, at
or prior to the delivery of the Company Order contemplated by Section 3.3 for
the authentication and delivery of such Debt Securities (or any such Global
Note).
The definitive Debt 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 Debt Securities, as conclusively evidenced by
their execution of such Debt Securities.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
19
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities issued under the within
mentioned Indenture.
------------------------------------------------
------------------------------------------------
By----------------------------------------------
Authorized Signatory
SECTION 2.3. SECURITIES IN GLOBAL FORM.
If any Debt Security of a series is issuable in global form (a "Global
Note"), such Global Note may provide that it shall represent the aggregate
amount of Outstanding Debt Securities from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Note to reflect the amount, or any increase or decrease
in the amount, of Outstanding Debt Securities represented thereby shall be made
by the Trustee and in such manner as shall be specified in such Global Note. Any
instructions by the Company with respect to a Global Note, after its initial
issuance, shall be in writing but need not comply with Section 1.2.
Global Notes may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent Global Notes will be issued in
definitive form.
ARTICLE III.
THE DEBT SECURITIES
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 3.3)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other
series of Debt Securities);
20
(2) the aggregate principal amount of such series of Debt
Securities and any limit on the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt
Securities of such series pursuant to Sections 3.4, 3.5, 3.6, 11.6 or
13.7);
(3) the percentage of the principal amount at which the
Debt Securities of such series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity or upon
redemption thereof or the method by which such portion shall be
determined.
(4) the date or dates on which or periods during which
the Debt Securities of the series may be issued, and the date or dates
or the method by which such date or dates will be determined, on which
the principal of (and premium, if any, on) the Debt Securities of such
series are or may be payable (which, if so provided in such Board
Resolution or supplemental indenture, may be determined by the Company
from time to time as set forth in the Debt Securities of the series
issued from time to time);
(5) the rate or rates (which may be variable or fixed) at
which the Debt Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the date or
dates from which such interest, if any, shall accrue or the method by
which such date or dates shall be determined (which, in either case or
both, if so provided in such Board Resolution or supplemental
indenture, may be determined by the Company from time to time and set
forth in the Debt Securities of the series issued from time to time);
and the Interest Payment Dates on which such interest shall be payable
(or the method of determination thereof), subject to the right, if any
such right is provided pursuant to this Section 3.1, of the Company to
defer or extend an Interest Payment Date and the duration of such
deferral or extension (an "Extended Interest Period") and the Regular
Record Dates, if any, for the interest payable on such Interest Payment
Dates and the notice, if any, to Holders regarding the determination of
interest, the manner of giving such notice, the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months and any conditions or contingencies as to the
payment of interest in cash or otherwise, if any;
(6) the place or places, if any, in addition to or
instead of the Corporate Trust Office of the Trustee (in the case of
Registered Securities) where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable; the extent
to which, or the manner in which, any interest payable on any Global
Note on an Interest Payment Date will be paid, if other than in the
manner provided in Section 3.7; the extent, if any, to which the
provisions of the last sentence of Section 12.1 shall apply to the Debt
Securities of the series; and the manner in which any principal of, or
premium, if any, on, any Global Note will be paid, if other than as set
forth elsewhere herein and
21
whether any Global Note will require any notation to evidence payment
of principal or interest;
(7) the obligation, if any, of the Company to redeem,
repay, purchase or offer to purchase Debt Securities of the series
pursuant to any mandatory redemption, sinking fund or analogous
provisions or upon other conditions or at the option of the Holder
thereof and the period or periods within which or the dates on which,
the prices at which and the terms and conditions upon which the Debt
Securities of the series shall be redeemed, repaid, purchased or
offered to be purchased, in whole or in part, pursuant to such
obligation;
(8) the right, if any, of the Company to redeem the Debt
Securities of such series at its option and the period or periods
within which, or the date or dates on which, the price or prices at
which, and the terms and conditions upon which such Debt Securities may
be redeemed, if any, in whole or in part, at the option of the Company
or otherwise, and such right as it may pertain to a Special Event
Redemption;
(9) if the coin or Currency in which the Debt Securities
shall be issuable is in Dollars, the denominations of such Debt
Securities if other than denominations of $1,000 and any integral
multiple thereof (except as provided in Section 3.4);
(10) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which
such Debt Securities may be issued and, if other than the principal
amount thereof, the portion of the principal amount of Debt Securities
of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(11) provisions, if any, for the defeasance or discharge
of certain of the Company's obligations with respect to Debt Securities
of the series;
(12) if the Debt Securities of such series are to be
deposited as trust assets in an RGA Capital Trust, the name of the
applicable RGA Capital Trust (which shall distinguish such statutory
business trust from all other RGA Capital Trusts) into which the Debt
Securities of such series are to be deposited as trust assets and the
date of its Trust Agreement;
(13) whether provisions for payment of additional amounts
or tax redemptions shall apply and, if such provisions shall apply,
such provisions;
(14) if other than Dollars, the Foreign Currency or
Currencies in which Debt Securities of the series shall be denominated
or in which payment of the principal of (and premium, if any) and
interest on the Debt Securities of the series may be made, and the
particular provisions applicable thereto and, if applicable, the amount
of Debt Securities of the series which entitles the Holder of a Debt
Security of the series or its proxy to one vote for purposes of Section
9.5;
22
(15) if the principal of (and premium, if any) or interest
on Debt Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in which
the Debt Securities are denominated or payable without such election,
in addition to or in lieu of the provisions of Section 3.10, the period
or periods within which and the terms and conditions upon which, such
election may be made and the time and the manner of determining the
exchange rate or rates between the Currency or Currencies in which the
Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid
if such election is made;
(16) the date as of which any Debt Securities of the
series shall be dated, if other than as set forth in Section 3.3;
(17) if the amount of payments of principal of (and
premium, if any) or interest on the Debt Securities of the series may
be determined with reference to an index, including, but not limited
to, an index based on a Currency or Currencies other than that in which
the Debt Securities are denominated or payable, or any other type of
index, the manner in which such amounts shall be determined;
(18) if the Debt Securities of the series are denominated
or payable in a Foreign Currency, any other terms concerning the
payment of principal of (and premium, if any) or any interest on such
Debt Securities (including the Currency or Currencies of payment
thereof);
(19) the designation of the original Currency
Determination Agent, if any;
(20) the applicable Overdue Rate, if any;
(21) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 7.1;
(22) any addition to, or modification or deletion of, any
term or condition relating to subordination, Events of Default or
covenants provided for with respect to Debt Securities of the series,
including, without limitation, Article XVII;
(23) whether Article XVIII will apply to the Debt
Securities of the series, and any addition to, or modification or
deletion of, Article XVIII;
(24) whether the Debt Securities of the series shall be
issued in whole or in part in the form of one or more Global Notes and,
in such case, the Depositary for such Global Note or Notes; and the
manner in which and the circumstances under which Global Notes
representing Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition
to, the manner and circumstances specified in Section 3.4(c);
23
(25) the designation, if any, of any depositaries,
trustees (other than the applicable Trustee), Paying Agents,
Authenticating Agents, Security Registrars (other than the Trustee) or
other agents with respect to the Debt Securities of such series;
(26) if the Debt Securities of such series will be
issuable in definitive form only upon receipt of certain certificates
or other documents or upon satisfaction of certain conditions, the form
and terms of such certificates, documents or conditions;
(27) whether the Debt Securities of such series will be
convertible into shares of Common Stock and, if so, the terms and
conditions, which may be in addition to or in lieu of the provisions
contained in the Indenture, upon which such Debt Securities will be so
convertible, including the conversion price and the conversion period;
(28) the portion of the principal amount of the Debt
Securities which will be payable upon declaration of acceleration of
the maturity thereof, if other than the principal amount thereof;
(29) the nature, content and date for reports by the
Company to the holders of the Debt Securities;
(30) provisions relating to the subordination of the Debt
Securities, if other than as set forth in Article XVII; and
(31) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination, rate of interest, Stated Maturity and the date from
which interest, if any, shall accrue, which, as set forth above, may be
determined by the Company from time to time as to Debt Securities of a series if
so provided in or established pursuant to the authority granted in a Board
Resolution or in any such indenture supplemental hereto, and except as may
otherwise be provided in or pursuant to such Board Resolution and (subject to
Section 3.3) set forth in such Officers' Certificate, or in any such indenture
supplemental hereto. All Debt Securities of any one series need not be issued at
the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is established in or
pursuant to a Board Resolution, a copy of such Board Resolution shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2. DENOMINATIONS.
In the absence of any specification pursuant to Section 3.1 with
respect to the Debt Securities of any series, the Debt Securities of such series
shall be issuable only as Registered Securities in denominations of $1,000, as
determined by a Board Resolution, and any integral multiple thereof and shall be
payable only in Dollars.
24
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debt Securities of any series shall be executed on behalf of the
Company by its Chairman, a Vice Chairman, its President, one of its Vice
Presidents or its Treasurer, under its corporate seal (which may be a facsimile
thereof) reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers may be manual or
facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series, executed
by the Company, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Debt Securities and the Trustee in
accordance with the Company Order shall authenticate and deliver such Debt
Securities. If all the Debt Securities of any one series are not to be issued at
one time and if a Board Resolution or supplemental indenture relating to such
series shall so permit, such Company Order may set forth procedures acceptable
to the Trustee for the issuance of such Debt Securities such as interest rate,
Stated Maturity, date of issuance and date from which interest, if any, shall
accrue. If any Debt Security shall be represented by a permanent Global Note,
then, for purposes of this Section and Section 3.4, the notation of a beneficial
owner's interest therein upon original issuance of such Debt Security or upon
exchange of a portion of a temporary Global Note shall be deemed to be delivery
in connection with the original issuance of such beneficial owner's interest in
such permanent Global Note.
The Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, prior to the authentication and
delivery of the Debt Securities of such series, (i) the supplemental indenture
or the Board Resolution by or pursuant to which the form and terms of such Debt
Securities have been approved and (ii) an Opinion of Counsel substantially to
the effect that:
(1) the authentication order furnished by the Company to
the Trustee in connection with the authentication and delivery of such
Debt Securities conforms to the requirements of this Indenture and
constitutes sufficient authority hereunder for the Trustee to
authenticate and deliver such Debt Securities;
(2) the forms and terms of such Debt Securities are
consistent with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such
supplemental indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
Trustee, is a valid and binding obligation enforceable against the
25
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law);
(4) the execution and delivery of such Debt Securities
have been duly authorized by all necessary corporate action of the
Company and such Debt Securities have been duly executed by the Company
and, assuming due authentication by the Trustee and delivery by the
Company, are valid and binding obligations enforceable against the
Company in accordance with their terms, entitled to the benefit of the
Indenture, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and subject
to such other exceptions as counsel shall request and as to which the
Trustee shall not reasonably object; and
(5) the amount of Debt Securities Outstanding of such
series, together with the amount of such Debt Securities, does not
exceed any limit established under the terms of this Indenture on the
amount of Debt Securities of such series that may be authenticated and
delivered.
The Trustee shall not be required to authenticate such Debt Securities
if the issuance of such Debt Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Debt Securities and
this Indenture in a manner which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Debt
Security a certificate of authentication substantially in one of the forms
provided for herein duly executed by the Trustee or by an Authenticating Agent,
and such certificate upon any Debt Security shall be conclusive evidence, and
the only evidence, that such Debt Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 3.8 together with a written statement (which need not
comply with Section 1.2) stating that such Debt Security has never been issued
and sold by the Company, for all purposes of this Indenture such Debt Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 3.4. TEMPORARY DEBT SECURITIES; GLOBAL NOTES REPRESENTING
REGISTERED SECURITIES.
(a) Pending the preparation of definitive Registered Securities of
any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Registered Securities which are printed,
lithographed, typewritten,
26
mimeographed or otherwise produced, in any authorized denomination for
Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every such temporary
Registered Security shall be executed by the Company and shall be authenticated
and delivered by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Registered Securities
in lieu of which they are issued.
Except in the case of temporary Debt Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, of a like Stated Maturity and with
like terms and provisions, upon surrender of the temporary Debt Securities of
such series at the office or agency of the Company in a Place of Payment for
such series, without charge to the Holder, except as provided in Section 3.5 in
connection with a transfer. Upon surrender for cancellation of any one or more
temporary Debt Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Debt Securities of the same series of authorized
denominations and of a like Stated Maturity and like terms and provisions.
(b) [reserved]
(c) If the Company shall establish pursuant to Section 3.1 that
the Registered Securities of a series are to be issued in whole or in part in
the form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 3.3 and the Company Order with respect
to such series, authenticate and deliver one or more Global Notes in temporary
or permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Debt Securities of
such series to be represented by one or more Global Notes, (ii) shall be
registered in the name of the Depositary for such Global Note or Notes or the
nominee of such depositary, and (iii) shall bear a legend substantially to the
following effect: "This Debt Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary, unless and until this Debt Security is exchanged in whole
or in part for Debt Securities in definitive form."
Notwithstanding any other provision of this Section or Section 3.5,
unless and until it is exchanged in whole or in part for Registered Securities
in definitive form, a Global Note representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such depositary or by a nominee
of such depositary to such depositary or another nominee of
27
such depositary or by such depositary or any such nominee to a successor
Depositary for such series or a nominee of such successor depositary.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for Debt
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to the Debt Securities of such series. If a successor
Depositary for the Debt Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Registered Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Note or Notes representing such series in
exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If the Registered Securities of any series shall have been issued in
the form of one or more Global Notes and if an Event of Default with respect to
the Debt Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Registered Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Note or Notes representing such series in exchange for such
Global Note or Notes.
If specified by the Company pursuant to Section 3.1 with respect to
Registered Securities of a series, the Depositary for such series of Registered
Securities may surrender a Global Note for such series of Debt Securities in
exchange in whole or in part for Registered Securities of such series in
definitive form on such terms as are acceptable to the Company and such
depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge:
(i) to each Person specified by the Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Note; and
28
(ii) to the Depositary a new Global Note in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Note and the aggregate principal amount of
Registered Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities in
definitive form, such Global Note shall be canceled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debt Securities to the Persons in whose names such Debt
Securities are so registered.
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers and exchanges of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and registering transfers and
exchanges of Registered Securities as herein provided; provided, however, that
the Company may appoint co-Security Registrars or the terms of any series of
Debt Securities may provide otherwise.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series of like aggregate principal amount of such
denominations as are authorized for Registered Securities of such series and of
a like Stated Maturity and with like terms and conditions.
Except as otherwise provided in Section 3.4 and this Section 3.5, at
the option of the Holder, Registered Securities of any series may be exchanged
for other Registered Securities of the same series of like aggregate principal
amount and of a like Stated Maturity and with like terms and conditions, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) [reserved]
(c) [reserved]
(d) All Debt Securities issued upon any transfer or exchange of
Debt Securities shall be valid obligations of the Company, evidencing the same
debt, and
29
entitled to the same benefits under this Indenture, as the Debt Securities
surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of Debt
Securities except as provided in Section 3.6. 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, transfer or exchange of Debt
Securities, other than those expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to register, transfer or exchange
Debt Securities of any series during a period beginning at the opening of
business 15 days before the day of the transmission of a notice of redemption of
Debt Securities of such series selected for redemption under Sections 13.3 or
13.8 and ending at the close of business on the day of such transmission, or
(ii) subject to the condition that any redemption pursuant to Section 13.8 be
only in whole, and not in part, to register, transfer or exchange any Debt
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBT
SECURITIES.
If (i) any mutilated Debt Security is surrendered to the Trustee at its
Corporate Trust Office, or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them and any Paying Agent harmless, and
neither the Company nor the Trustee receives notice that such Debt Security has
been acquired by a bona fide purchaser, then the Company shall execute and upon
Company Request the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new
Debt Security of the same series of like Stated Maturity and with like terms and
conditions and like principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debt Security, pay the amount due on such Debt Security
in accordance with its terms.
Upon the issuance of any new Debt Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
30
Every new Debt Security of any series issued pursuant to this Section
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debt 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 Debt Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security which is payable and is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest notwithstanding the cancellation of such Registered Security
upon any transfer or exchange subsequent to the Regular Record Date. Unless
otherwise specified as contemplated by Section 3.1 with respect to the Debt
Securities of any series, payment of interest on Registered Securities shall be
made at the place or places specified pursuant to Section 3.1 or, at the option
of the Company, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or, if provided pursuant to
Section 3.1, by wire transfer to an account designated by the Registered Holder.
(b) [reserved]
(c) Subject to Article XVIII (if it is provided pursuant to
Section 3.1 that Article XVIII shall apply to the Debt Securities of such
series), any interest on any Debt Security which is payable but is not
punctually paid or duly provided for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Registered
Holder on the relevant Regular Record Date by virtue of his having been such
Registered Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such Registered
Securities (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered Security
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the Currency in
which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Sections 3.1 or 3.10) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided.
31
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which date shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to the Holders of such Registered Securities at their
addresses as they appear in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest on Registered Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
(d) [reserved]
(e) Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.8. CANCELLATION.
Unless otherwise specified pursuant to Section 3.1 for Debt Securities
of any series, all Debt Securities surrendered for payment, redemption,
transfer, exchange or credit against any sinking fund shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee. All Registered
Securities so delivered shall be promptly canceled by the Trustee. The Company
may at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Debt Securities
previously authenticated hereunder which the Company has not issued, and all
Debt Securities so delivered shall be promptly canceled by the Trustee. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee shall be
delivered to the Company upon Company Request. The acquisition of any Debt
Securities by the Company shall not operate as a redemption or satisfaction of
the indebtedness represented thereby unless and until such Debt Securities are
surrendered to the Trustee for cancellation. Permanent
32
Global Notes shall not be destroyed until exchanged in full for definitive Debt
Securities or until payment thereon is made in full.
SECTION 3.9. COMPUTATION OF INTEREST.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.10. CURRENCY OF PAYMENTS IN RESPECT OF DEBT SECURITIES.
(a) [reserved]
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 3.1 with respect to the
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (e) and (f) below (and provided that in no instance may such
election be made after a defeasance pursuant to Article XV or during the
continuance of an Event of Default), to receive payments of principal of (and
premium, if any) and any interest on such Registered Securities in any of the
Currencies which may be designated for such election in the applicable
supplemental indenture by delivering to the Trustee a written election, to be in
form and substance satisfactory to the Trustee, not later than the close of
business on the Election Date immediately preceding the applicable payment date.
If a Holder so elects to receive such payments in any such Currency, such
election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee
(but any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change or election may
be made with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or notice of
redemption has been given by the Company pursuant to Article XIII). Any Holder
of any such Registered Security who shall not have delivered any such election
to the Trustee by the close of business on the applicable Election Date will be
paid the amount due on the applicable payment date in the relevant Currency as
provided in paragraph (b) of this Section 3.10.
(d) If the election referred to in paragraph (c) above has been
provided for pursuant to Section 3.1, then not later than the fourth Business
Day after the Election Date for each payment date, the Trustee will deliver to
the Company a written notice specifying, in the Currency in which each series of
the Registered Securities is payable, the respective aggregate amounts of
principal of (and premium, if any) and any interest on the Registered Securities
to be paid on such payment date, specifying the amounts so payable in respect of
the Registered Securities as to which the Holders of Registered
33
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (c) above. If the election referred to in
paragraph (c) above has been provided for pursuant to Section 3.1 and if at
least one Holder has made such election, then, on the second Business Day
preceding each payment date, the Company will deliver to the Trustee an Exchange
Rate Officer's Certificate in respect of the Currency payments to be made on
such payment date. The Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (c)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other Currency unit in which any of the Debt Securities
are denominated or payable other than pursuant to an election provided for
pursuant to paragraph (c) above, then with respect to each date for the payment
of principal of (and premium, if any) and any interest on the applicable Debt
Securities denominated or payable in such Foreign Currency, the ECU or such
other Currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other Currency unit was used (the "Conversion Date"),
the Dollar shall be the Currency of payment for use on each such payment date.
The Dollar amount to be paid by the Company to the Trustee and by the Trustee or
any Paying Agent to the Holders of such Debt Securities with respect to such
payment date shall be the Dollar Equivalent of the Foreign Currency or, in the
case of a Currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Currency Determination Agent, if any, or, if there
shall not be a Currency Determination Agent, then by the Trustee, in the manner
provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 3.10.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Currency Determination Agent, and subject to the provisions of
paragraph (i) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(i) For purposes of this Section 3.10 the following terms shall
have the following meanings:
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A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided into two or
more Currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more Currencies with appropriate
Dollar equivalents at the Market Exchange Rate on the date of such
replacement equal to the Dollar equivalent of the Specified Amount of
such former Component Currency at the Market Exchange Rate on such
date, and such amounts shall thereafter be Specified Amounts and such
Currencies shall thereafter be Component Currencies. If after the
Conversion Date of the relevant Currency unit, including but not
limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such Currency unit, the Specified Amount
of such Component Currency shall, for purposes of calculating the
Dollar Equivalent of the Currency Unit, be converted into Dollars at
the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the earlier of (i) the seventh
Business Day immediately preceding any payment date or (ii) the record
date with respect to any payment date, and with respect to the Maturity
shall mean the record date (if within 16 or fewer days prior to the
Maturity) immediately preceding the Maturity, and with respect to any
series of Debt Securities whose record date immediately preceding the
Maturity is more than 16 days prior to the Maturity or any series of
Debt Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or the Currency
Determination Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign Currency,
the Company, after learning thereof, will
35
immediately give written notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 1.5 to the
Holders) specifying the Conversion Date. In the event of a Conversion Event with
respect to the ECU or any other Currency unit in which Debt Securities are
denominated or payable, the Company, after learning thereof, will immediately
give notice thereof to the Trustee (and the Trustee will promptly thereafter
give written notice in the manner provided in Section 1.5 to the Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event of any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above, the
Company, after learning thereof, will similarly give written notice to the
Trustee. The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Currency
Determination Agent, if any, and shall not otherwise have any duty or obligation
to determine such information independently.
(k) For purposes of any provision of the Indenture where the Holders of
Outstanding Debt Securities may perform an Act which requires that a specified
percentage of the Outstanding Debt Securities of all series perform such Act and
for purposes of any decision or determination by the Trustee of amounts due and
unpaid for the principal of (and premium, if any) and interest on the Debt
Securities of all series in respect of which moneys are to be disbursed ratably,
the principal of (and premium, if any) and interest on the Outstanding Debt
Securities denominated in a Foreign Currency will be the amount in Dollars based
upon the Market Exchange Rate for Debt Securities of such series, as of the date
for determining whether the Holders entitled to perform such Act have performed
it, or as of the date of such decision or determination by the Trustee, as the
case may be.
(l) The Company hereby appoints itself as the initial Currency
Determination Agent and the Company shall be entitled to remove such agent at
any time; provided, however, that such removal shall not be effective and the
agent may not resign until a successor has been appointed by the Company and the
successor has accepted such appointment. The Trustee is under no duty or
obligation to serve in the capacity of Currency Determination Agent.
SECTION 3.11. ADDITIONAL PAYMENTS
If, at any time while the Property Trustee is the holder of any Debt
Securities, the applicable RGA Capital Trust or the Property Trustee is required
to pay any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Company shall pay as Additional Payments on
the Debt Securities held by the Property Trustee, such additional amounts as
shall be required so that the net amounts received and retained by the Trust and
the Property Trustee after paying such taxes, duties, assessments or other
governmental charges shall be equal to the amounts the Trust and the Property
Trustee would have received had no such taxes, duties, assessments or other
government charges been imposed. "Additional Payments" shall also include
amounts necessary to cover the costs and expenses of collection of overdue
installments of principal (and premium, if any) and of interest (including any
Additional Interest),
36
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, as set forth in Section 5.3.
SECTION 3.12. EXCHANGE UPON DEFAULT.
If default is made in the payments referred to in Section 12.1, the
Company hereby undertakes that upon presentation and surrender of a permanent
Global Note to the Trustee (or to any other Person or at any other address as
the Company may designate in writing), on any Business Day on or after the
maturity date thereof the Company will issue and the Trustee will authenticate
and deliver to the holder of such permanent Global Note duly executed and
authenticated definitive Debt Securities with the same issue date and maturity
date as set out in such permanent Global Note.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture, with respect to the Debt Securities of any series (if
all series issued under this Indenture are not to be affected), shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of such Debt Securities herein
expressly provided for and rights to receive payments of principal (and premium,
if any) and interest on such Debt Securities) and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) Debt Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, and (i) Debt Securities of
such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 12.4) have been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation,
(i) have become due and payable by reason of the making
of a notice of redemption or otherwise, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company, either complies with any other condition or terms
specified pursuant to Section 3.1, or if not so specified in the case
of (i), (ii) or (iii) of this subclause (B), has irrevocably deposited
or caused to be deposited with the
37
Trustee as trust funds in trust solely for the benefit of the Holders,
cash in United States Dollars, non-callable government securities or a
combination thereof, in such amounts as will be (except as otherwise
provided pursuant to Sections 3.1 or 3.10) sufficient without
consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on such Debt Securities not delivered to the
Trustee for cancellation for principal, premium, if any and accrued
interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, the obligations of
the Company under Section 12.1, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 12.4, shall
survive. If, after the deposit referred to in Section 4.1 has been made, (x) the
Holder of a Debt Security is entitled to, and does, elect pursuant to Section
3.10(c), to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.1 was made, or (y) if a Conversion Event occurs with
respect to the Currency in which the deposit was made or elected to be received
by the Holder pursuant to Section 3.10(c), then the indebtedness represented by
such Debt Security shall be fully discharged to the extent that the deposit made
with respect to such Debt Security shall be converted into the Currency in which
such payment is made.
SECTION 4.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 12.4, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE V.
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt Securities
of any series means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law, pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Debt
Security of such series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (and premium,
if any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which expressly has been
included in this Indenture solely for the benefit of Debt Securities of
a series other than 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 or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Debt Securities of such series, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, or a decree or order 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 any applicable Federal or State
law, or appointing a receiver, liquidator, assignee, custodian,
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 90 consecutive days; or
(6) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other
39
applicable Federal or State bankruptcy, insolvency or other similar
law, or the consent by it to the entry of an order for relief in an
involuntary case under any such law or to the appointment of a
receiver, liquidator, assignee, custodian, 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
its 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
(7) any other Event of Default specified with respect to Debt
Securities of that series pursuant to Section 3.1.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series may declare the principal amount (or,
if any Debt Securities of such series are Discount Securities or indexed
securities, such portion of the principal amount of such Discount Securities as
may be specified in the terms of such Discount Securities or indexed securities)
of all the Debt Securities of such series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) plus
accrued and unpaid interest (and premium, if payable) shall become immediately
due and payable, provided, however, that payment of such principal and interest,
if any, on the Debt Securities of such series shall remain subordinated to the
extent provided in Article XVII. Upon payment of such amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Sections 3.1 or 3.10), all obligations of the Company in respect of
the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except
as otherwise provided pursuant to Sections 3.1 or 3.10) sufficient to
pay
(A) all overdue installments of interest on all Debt
Securities of such series,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Debt Securities,
40
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each
Debt Security of such series at the Overdue Rate
("Additional Interest"), and
(D) all Additional Payments; provided, however, that all sums
payable under this clause (D) shall be paid in Dollars;
and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt
Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission and waiver shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Debt Security when such interest becomes due and
payable and such default continues for a period of 30 days,
(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) 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 Debt Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities, the amount then due and payable on such Debt
Securities for the principal (and premium, if any) and interest, if any, and, to
the extent that payment of such interest shall be legally enforceable,
Additional Interest; and, in addition thereto, such further amount as shall be
sufficient to cover any Additional Payments, including, without limitation, the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amount 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 decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities, and collect
the moneys adjudged or
41
decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Debt Securities wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or the property of
the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Debt Securities shall then be due
and payable as therein expressed or by declaration of acceleration 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,
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are 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 5.2) (and premium, if any) and interest owing
and unpaid in respect of the Debt 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 such Debt
Securities 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, custodian, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities of such series or
42
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 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture or the Debt
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of such Debt Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name, as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Debt Securities in
respect of which such judgment has been recovered.
SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Subject to Article XVII, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal (and premium, if any) or interest, upon presentation of the Debt
Securities of any series in respect of which money has been 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 6.7.
SECOND: To the payment of all Senior Indebtedness if and to
the extent required by Article XVII.
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
of such series, in respect of which or for the benefit of which such
money has been collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities
for principal (and premium, if any) and interest, respectively; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7. LIMITATION ON SUITS.
No Holder of any Debt 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 for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series;
43
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities of any other series, or
to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
For the protection and enforcement of the provisions of this Section 5.7, each
and every Holder of Debt Securities of any series and the Trustee for such
series shall be entitled to such relief as can be given at law or in equity.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7 and Article XVIII (if it is provided pursuant to Section 3.1 that
Article XVIII shall apply to the Debt Securities of such series)) interest on
such Debt Security on the respective Stated Maturity or Maturities expressed in
such Debt Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment and interest thereon,
and such right shall not be impaired without the consent of such Holder.
SECTION 5.9. 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 the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
44
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise expressly provided elsewhere in this Indenture, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder 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 any
acquiescence therein. Every right and remedy given by this Indenture or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceeding so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
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 any such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking
45
fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article XI cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected.
Notwithstanding the foregoing, if the Debt Securities of any series are
held as trust assets of the applicable RGA Capital Trust or a trustee of such an
RGA Capital Trust, any such waiver or modification shall not be effective until
the holders of a majority in liquidation amount of the Trust Securities of the
applicable RGA Capital Trust shall have consented to such waiver or
modification; provided, that if the Debt Securities of any series are held as
trust assets of an RGA Capital Trust or a trustee of such an RGA Capital Trust,
and if the consent of the Holder of each Outstanding Debt Security is required,
such waiver shall not be effective until each Holder of the Trust Securities of
the related RGA Capital Trust shall have consented to such waiver. 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 the Debt
Securities of such series under this Indenture, but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee 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 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder of a Debt Security for the enforcement of the payment of the principal of
(or premium, if any) or interest thereon on, or after the Stated Maturity or
Maturities expressed in such Debt Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 5.15. 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.
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ARTICLE VI.
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to the Debt Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) 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 provisions 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 with respect to Debt Securities of any
series has occurred and is continuing, the Trustee shall, with respect to the
Debt Securities of such series, exercise such of the rights and powers vested in
it by this Indenture, 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
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) 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;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debt Securities of such series 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;
(4) the Trustee is under no obligation or duty to pay interest on
or invest any funds deposited with it except as specifically provided
in this
47
Indenture, and all investment activities undertaken by the Trustee, if
any, shall be at and pursuant to the written instruction of the
Company; and
(5) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of 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.
(e) Any opinion required or permitted to be delivered to the Trustee
hereunder may be addressed and delivered to the entity serving as Trustee
hereunder solely in its individual capacity and not in its capacity as Trustee,
fiduciary or as representative of the holders of such Debt Securities issued by
the Company.
SECTION 6.2. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to Debt Securities of any series, the Trustee shall give notice to all
Holders of Debt Securities of such series of such default hereunder 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 the principal of (or
premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment with respect to Debt Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of Debt
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 5.1(4) with respect to Debt
Securities of such series no such notice to Holders shall be given until at
least 90 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of such
series.
Notice given pursuant to this Section 6.2 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee
in accordance with Section 7.2(a) of this Indenture.
SECTION 6.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 6.1:
48
(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,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of any series pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent (including any agent appointed pursuant to
Section 3.10(j)) or attorney appointed with due care by it hereunder.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities of any series. The Trustee shall not be
accountable for the use or application by the Company of any Debt Securities or
the proceeds thereof.
49
SECTION 6.5. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Debt Securities, and, subject to Sections 6.8 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 6.6. MONEY HELD IN TRUST.
Money in any Currency held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for (i) interest on any money received by it hereunder except as otherwise
agreed with the Company or (ii) losses resulting from currency fluctuations or
any investments made pursuant to 6.1(c)(4).
SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation in Dollars 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);
(2) except as otherwise expressly provided herein, to
reimburse the trustee in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Debt Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of amounts due on the Debt Securities.
The obligations of the Company under this Section 6.7 to compensate and
indemnify the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness under this Indenture and shall survive the satisfaction
and discharge of this Indenture.
50
SECTION 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section with respect to the Debt Securities of any series, then,
within 90 days after ascertaining that it has such conflicting interest, and if
the default (as hereinafter defined) to which such conflicting interest relates
has not been cured or duly waived or otherwise eliminated before the end of such
90-day period, the Trustee shall either eliminate such conflicting interest or,
except as otherwise provided below, resign with respect to the Debt Securities
of such series, and the Company shall take prompt steps to have a successor
appointed, in the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debt Securities
of any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit to all Holders of Debt Securities of such series notice
of such failure.
Notice given pursuant to this Section 6.8(b) shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of the
Registered Holders appear in the Security Register; and
(2) to each Holder of a Debt Security of any series whose name and
address appear in the information preserved at the time by the Trustee
in accordance with Section 7.2(a) of this Indenture.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Debt Securities of any series,
if there shall exist an Event of Default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) with respect to such
Debt Securities and
(1) the Trustee is trustee under this Indenture with respect to
the Outstanding Debt Securities of any series other than that series or
is trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Company are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Debt Securities issued under this Indenture, provided that there shall
be excluded from the operation of this paragraph this Indenture with
respect to the Debt Securities of any series other than that series and
any other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or indentures
(and all series of securities issuable thereunder) are wholly
unsecured and rank equally and such other indenture or indentures
are hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to the Debt Securities of such
51
series and one or more other series or the provisions of such
other indenture or indentures which are so likely to involve a
material conflict of interest as to make it necessary, in the
public interest or for the protection of investors to disqualify
the Trustee from acting as such under this Indenture with respect
to the Debt Securities of such series and such other series or
under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Debt Securities of such series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to
the Debt Securities of such series and such other series or under
such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of
the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (i) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive
officer, or both, of the Company but may not be at the same time an
executive officer of both the Trustee and the Company; (ii) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary or in any other similar capacity, or, subject to the
provisions of paragraph (l) of this subsection, to act as trustee,
whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof or is beneficially owned,
collectively, by any two or more such persons;
52
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Debt Securities issued under this Indenture and securities issued under
any other indenture under which the Trustee is also trustee, or (ii)
10% or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 5% or more of the
voting securities of any person who, to the knowledge of the Trustee,
owns 10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of or holds as collateral
security for an obligation which is in default, 10% or more of any
class of security of any person who, to the knowledge of the Trustee,
owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of such Event of Default or any
anniversary of such Event of Default while such Event of Default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph (6), (7)
or (8) of this subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of not more
than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after
the dates of any such Event of Default and annually in each succeeding
year that such Event of Default continues, the Trustee shall make a
check of its holdings of such securities in any of the above-mentioned
capacities as of such dates. If the Company fails to make payment in
full of the principal of (or premium, if any) or interest on any of the
Debt Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in paragraphs (1),
(3), (4), (5) or (6) of Section 6.13(b) of this Indenture, the Trustee
shall be or shall become a creditor of the Company.
53
For the purposes of paragraph (1) of this subsection, the term "series
of securities" or "series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such series may vote
to direct the Trustee, or otherwise take action pursuant to a vote of such
holders, separately from holders of another series; provided, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
only, (i) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (iii) the Trustee shall not be deemed to be
the owner or holder of (A) any security which it holds as collateral security,
as trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time,
or has participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a participation in
the direct or indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the usual and
customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate,
an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall
include only a trust where the
54
interest or interests of the beneficiary or beneficiaries are evidenced
by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangements whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization, whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(3) The term "amount", when used with regard to securities
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
55
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of
or interest on any Debt Security of any series, or in the payment of any sinking
or purchase fund installment, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that:
(1) the Event of Default may be cured or waived during a
reasonable period and under the procedures described in such
application; and
(2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Debt Securities.
The filing of such an application shall automatically stay the performance of
the duty to resign until the Commission orders otherwise.
SECTION 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $75,000,000, subject to supervision or examination by Federal, State
or District of Columbia 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, 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
56
published. Neither the Company nor any person directly or indirectly
controlling, controlled by, or under common control with the Company shall serve
as Trustee upon any Debt Securities.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series and a successor Trustee appointed by Act of the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a) with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 with
respect to the Debt Securities of any series and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee for the Debt Securities of such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly
57
appoint a successor Trustee or Trustees with respect to the Debt Securities of
that or those series (it being understood that any such successor Trustee may be
appointed with respect to the Debt Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Debt Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Debt Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Debt Securities of any series shall
have been so appointed by the Company or the Holders of such series and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Debt Security of such series for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner and to the extent provided in Section 1.5 to the Holders of
Debt Securities of such series. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, each such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.7.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor
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Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Debt Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debt Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in any 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 other trust
or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of any such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates, but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debt
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such Corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Debt Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
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SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Debt Securities and
the holders of other indenture securities (as defined in subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
voluntary or involuntary case had been commenced in respect of the
Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings or
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of
such three-month period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was
so received the Trustee had no reasonable cause to
60
believe that a default, as defined in subsection (c) of this Section,
would occur within three months, or
(D) to receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for
such claim as provided in paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted or any other applicable Federal
or State bankruptcy, insolvency or other similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization pursuant
to the Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, whether
such distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of
61
such distributions as between the secured and unsecured portions of such claim,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the Lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper as defined in subsection
(c) of this Section.
(c) for the purposes of this Section only:
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(1) The term "default" means any failure to make payment in full
of the principal of or interest on any of the Debt Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account.
(3) 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 and payable upon demand.
(4) 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.
(5) The term "Company" means any obligor upon the Debt Securities.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
As long as any Debt Securities of a series remain Outstanding, upon a
Company Request, there shall be an authenticating agent (the "Authenticating
Agent") appointed, for such period as the Company shall elect, by the Trustee
for such series of Debt Securities to act as its agent on its behalf and subject
to its direction in connection with the authentication and delivery of each
series of Debt Securities for which it is serving as Trustee. Debt Securities of
each such series authenticated by such Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series by
the Trustee for such series or to the Trustee's Certificate of Authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee for such series by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of such Trustee by such
Authenticating Agent, except that only the Trustee may authenticate Debt
Securities upon original issuance and pursuant to Section 3.6 hereof. Such
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,
63
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $10,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation into which 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 all series of Debt Securities 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 for such series or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the applicable Trustee
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 6.14 with respect to one or more
or all series of Debt Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of Debt Securities of such series in
the manner and to the extent provided in Section 1.5. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Debt Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services, and the Trustee shall be entitled to be reimbursed for such
payment, subject to the provisions of Section 6.7. The Authenticating Agent for
the Debt Securities of any series shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant
to this Section, the Debt Securities of such series may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the series of Debt Securities issued under the within
mentioned Indenture.
As Trustee
By:
-----------------------------
As Authenticating Agent
By:
-----------------------------
Authorized Signatory
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to Registered Securities of each series for which it acts as 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 Registered
Securities of such series (or on semi-annual dates in each year to be determined
pursuant to Section 3.1 if the Registered Securities of such series do not bear
interest), a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Registered Holders as of the date 15 days next
preceding each such Regular Record Date (or such semi-annual dates, as the case
may be); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATION TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
received by it in the capacity of Paying Agent (if so acting) hereunder, and
filed with it within the two preceding years pursuant to Section 7.3(c)(2).
The Trustee may destroy any list furnished to it as provided in Section
7.1 upon receipt of a new list so furnished, destroy any information received by
it as Paying Agent
65
(if so acting) hereunder upon delivering to itself as Trustee, not earlier than
45 days after an Interest Payment Date, a list containing the names and
addresses of the Holders obtained from such information since the delivery of
the next previous list, if any, destroy any list delivered to itself as Trustee
which was compiled from information received by it as Paying Agent (if so
acting) hereunder upon the receipt of a new list so delivered.
(b) If three or more Holders (hereinafter referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Debt Security 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 Debt Securities of a
particular series (in which case the applicants must hold Debt Securities of
such series) or with all Holders of Debt Securities with respect to their rights
under this Indenture or under the Debt Securities 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 Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debt Securities of such series or of all Debt Securities, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon written request of such applicants, mail to
the Holders of Debt Securities of such series or all Holders, as the case may
be, whose names and addresses appear in the information preserved at the time by
the Trustee in accordance with Section 7.2(a), 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 the Holders of
Debt Securities of such series or all Holders, as the case may be, 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.
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(c) Every Holder of Debt Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
of any material pursuant to a request made under Section 7.2(b).
SECTION 7.3. REPORTS BY TRUSTEE.
(a) Within 60 days after January 15 of each year, commencing January
15, 2000, the Trustee shall, to the extent required by the Trust Indenture Act,
transmit to all Holders of Debt Securities of any series with respect to which
it acts as Trustee, in the manner hereinafter provided in this Section 7.3, a
brief report dated such date with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 6.9 and its
qualifications under Section 6.8;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 6.8(c) of this
Indenture;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Debt Securities of such series, on
any property or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Outstanding Debt Securities of
such series on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or any other obligor on
the Debt Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
Section 6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Debt Securities which the Trustee has
not previously reported; and
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(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders of Debt
Securities of any series (whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a)) for
which it acts as the Trustee, as hereinafter provided, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Debt Securities of such series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
subsection, except that the Trustee for each series shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debt Securities of such
series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 7.3 shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders of Registered Securities appear in the
Security Register; and
(2) except in the cases of reports pursuant to subsection (b) of
this Section 7.3, to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed with the Company and the Company shall file such report
with each stock exchange upon which any Debt Securities of such series are
listed, with the Commission and also with the Company. The Company will notify
the Trustee when any series of Debt Securities are listed on any stock exchange.
SECTION 7.4. REPORTS BY COMPANY.
Unless otherwise specified with respect to a particular series of Debt
Securities pursuant to Section 3.1, the Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the
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Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
or otherwise report on an annual and quarterly basis on forms provided
for such annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the Company shall continue
to file with the Commission and provide the Trustee and the Holders of
each series of Debt Securities with, without cost to each Holder, (a)
within 90 days after the end of each fiscal year, annual reports on
Form 10-K (or any successor or comparable form) containing the
information required to be contained therein (or required in such
successor or comparable form); (b) within 45 days after the end of each
of the first three fiscal quarters of each fiscal year, reports on Form
10-Q (or any successor or comparable form); and (c) promptly from time
to time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K (or any successor or
comparable form) containing the information required to be contained
therein (or required in any successor or comparable form); provided,
however, that the Company shall not be obligated to file such reports
with the Commission if the Commission does not permit such filings. The
Company will in all cases, without cost to each recipient, provide
copies of such information to the Holders of the Debt Securities of
each series and, if they are not permitted to file such reports with
the Commission, shall make available information to prospective
purchasers and to securities analysts and broker-dealers upon their
request;
(2) file with the 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
(3) transmit to all Holders of Debt Securities, in the manner and
to the extent provided in Section 7.3, 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
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE VIII.
CONCERNING THE HOLDERS
SECTION 8.1. ACTS OF HOLDERS.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or proxy 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
69
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. Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Outstanding Debt Securities of any series may take any
Act, the fact that the Holders of such specified percentage have joined therein
may be evidenced (a) by the instrument or instruments executed by Holders in
person or by agent or proxy appointed in writing, or (b) by the record of
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article IX, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders.
SECTION 8.2. PROOF OF OWNERSHIP; PROOF OF EXECUTION OF INSTRUMENTS
BY HOLDER.
The ownership of Registered Securities of any series shall be proved by
the Security Register for such series or by a certificate of the Security
Registrar for such series.
Subject to the provisions of Sections 6.1, 6.3 and 9.5, proof of the
execution of a writing appointing an agent or proxy and of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient and conclusive
in favor of the Trustee and the Company if made in the following manner:
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer
authorized to take acknowledgements of deeds, that the person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such officer.
Where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the manner
provided in Section 9.6.
The Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section so long as the request is a
reasonable one.
SECTION 8.3. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of the
principal of (and premium, if any) and (subject to Section 3.7) interest, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. All payments made to any Holder, or
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upon his order, shall be valid, and, to the extent of the sum or sums paid,
effectual to satisfy and discharge the liability for moneys payable upon such
Debt Security.
SECTION 8.4. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any Act by the Holders of the
percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 8.2,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and, subject to the provisions of Section 5.8, upon all
future Holders of such Debt Security and of any Debt Securities issued on
transfer or in lieu thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or such other Debt Securities.
ARTICLE IX.
HOLDERS' MEETINGS
SECTION 9.1. PURPOSES OF MEETINGS.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article IX for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee for
such series, or to give any directions to the Trustee for such series,
or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article V;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Debt Securities of any one or more or all series, as
the case may be, under any other provision of this Indenture or under
applicable law.
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SECTION 9.2. CALL OF MEETINGS BY TRUSTEE.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 9.1, to be held at such time
or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 1.5. Such notice shall be given not
less than 10 days nor more than 90 days prior to the date fixed for the meeting.
SECTION 9.3. CALL OF MEETINGS BY COMPANY OR HOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Outstanding Debt
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 10 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 9.1, by giving notice thereof as provided in Section 9.2.
SECTION 9.4. QUALIFICATIONS FOR VOTING.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Debt Security of the series with respect to which such meeting is
being held or (b) a Person appointed by an instrument in writing as agent or
proxy by such Holder. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee for the series
with respect to which such meeting is being held and its counsel and any
representatives of the Company and its counsel.
SECTION 9.5. REGULATIONS.
Notwithstanding any other provisions of this Indenture, the Trustee for
any series may make such reasonable regulations as it may deem advisable for any
meeting of Holders of such series, in regard to proof of the holding of Debt
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 9.3, in which case
the Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by a majority vote of the meeting.
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Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Debt Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount, as applicable (or such other amount as shall be
specified pursuant to Section 3.1) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly designating
him as the person to vote on behalf of Holders of Debt Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 9.2 or 9.3 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
SECTION 9.6. VOTING.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
taken, and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
9.2. The record shall show the serial numbers of the Debt Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE X.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge with or into or wind up
into (whether or not the Company is the surviving corporation) or sell, assign,
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
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(1) the Corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "successor corporation") shall be a
Corporation organized and existing under the laws of the United States
or any State or territory thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt 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 which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(4) such other conditions as may be specified under Section
3.1 with respect to any series of Debt Securities.
SECTION 10.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other Corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 10.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
ARTICLE XI.
SUPPLEMENTAL INDENTURES
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Corporation to the
rights of the Company and the assumption by such successor of the
covenants of the Company contained herein and in the Debt Securities;
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(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt Securities (and if
such covenants are to be for the benefit of less than all series,
stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein
conferred upon the Company;
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series);
(4) [reserved];
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision and as to which such
supplemental indenture would apply;
(6) to secure the Debt Securities or to provide that any
of the Company's obligations under any series of the Debt Securities
shall be guaranteed and the terms and conditions for the release or
substitution of such security or guarantee;
(7) 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 IV or XV, provided that any such action shall not adversely
affect the interests of the Holders of Debt Securities of such series
or any other series of Debt Securities in any material respect;
(8) to establish the form or terms of Debt Securities of
any series as permitted by Sections 2.1 and 3.1; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one or
more series of Debt 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 6.10;
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, to eliminate any conflict between the terms hereof
and the Trust Indenture Act or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with any provision of this Indenture; or
(11) to modify the provisions of Article XVII (except,
with respect to any Outstanding Securities, to the extent prohibited by
clause 5 of Section 11.2);
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provided such other provisions shall not adversely affect the interests of the
Holders of Outstanding Debt Securities of any series created prior to the
execution of such supplemental indenture in any material respect.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby,
(1) conflict with the required provisions of the Trust
Indenture Act;
(2) except as specifically provided with respect to any
series of Debt Securities pursuant to Section 3.1, (a) change the
Stated Maturity of the principal of, or installment of interest, if
any, on, any Debt Security, or (b) reduce the principal amount thereof
or the interest thereon or any premium payable upon redemption thereof
(provided that a requirement to offer to repurchase Debt Securities
shall not be deemed a redemption for this purpose), or (c) change the
Currency or Currencies in which the principal of (and premium, if any)
or interest on such Debt Security is denominated or payable, or (d)
reduce the amount of the principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or (e) reduce the amount of, or
postpone the date fixed for, any payment under any sinking fund or
analogous provisions for any Debt Security, or (f) impair the right to
institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or (g) adversely affect the right to convert any Debt
Security into shares of Common Stock of the Company as may be provided
pursuant to Section 3.1;
(3) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any 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;
(4) modify any of the provisions of this Section, Section
5.13 or Section 12.7, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Debt Security of each series affected thereby; provided,
however, that this clause shall not be deemed to require the consent of
any Holder with respect to changes in the references to "the Trustee"
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and concomitant changes in this Section and Section 12.7, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.10 and 11.1(9); or
(5) modify the provisions of this Indenture with respect
to the subordination of the Outstanding Securities of any series in a
manner adverse to the Holders thereof.
Notwithstanding the foregoing, if the Debt Securities of a series are
held as trust assets of the applicable RGA Capital Trust or a trustee of such an
RGA Capital Trust, such supplemental indenture shall not be effective until the
holders of a majority in liquidation amount of Trust Securities of the
applicable RGA Capital Trust shall have consented to such supplemental
indenture; provided, that if the Debt Securities of any series are held as trust
assets of an RGA Capital Trust or a trustee of such an RGA Capital Trust, and if
the consent of the Holder of each Outstanding Debt Security of a particular
series is required, such supplemental indenture shall not be effective until
each Holder of the Trust Securities of the applicable RGA Capital Trust shall
have consented to such supplemental indenture. It shall not be necessary for any
Act of Holders under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture with respect to one or more particular series
of Debt Securities, or which modifies the rights of the Holders of Debt
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Debt Securities of any other series.
SECTION 11.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) 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 and that the supplemental indenture
conforms to the requirements of the Trust Indenture Act as then in effect. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise in a material way.
SECTION 11.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 11.5. 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.
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SECTION 11.6. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Debt Securities of such
series.
SECTION 11.7. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the appropriate Trustee
of any supplemental indenture pursuant to Section 11.2, the Company shall
transmit, in the manner and to the extent provided in Section 1.5, to all
Holders of any series of the Debt Securities affected thereby, a notice setting
forth in general terms the substance of such supplemental indenture.
ARTICLE XII.
COVENANTS
SECTION 12.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Debt
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Debt Securities in accordance with the terms of the
Debt Securities and this Indenture. If so provided in the terms of any series of
Debt Securities established as provided in Section 3.1, the interest, if any,
due in respect of any temporary Global Note or permanent Global Note, together
with any additional amounts payable in respect thereof, as provided in the terms
and conditions of such Debt Security, shall be payable only upon presentation of
such Debt Security to the Trustee for notation thereon of the payment of such
interest.
SECTION 12.2. OFFICER'S CERTIFICATE AS TO DEFAULT.
Unless otherwise specifically provided for with respect to any series
of Debt Securities under Section 3.1, the Company will deliver to the Trustee,
on or before a date not more than four months after the end of each fiscal year
of the Company (which on the date hereof is the calendar year) ending after the
date hereof, a certificate of the principal executive officer, principal
financial officer or principal accounting officer of the Company stating whether
or not to the best knowledge of the signer thereof the Company is in compliance
with all covenants and conditions under this Indenture, and, if the Company
shall be in default, specifying all such defaults and the nature thereof of
which such signer may have knowledge. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
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SECTION 12.3. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for such series an
office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be surrendered
for registration of transfer or exchange, where Debt Securities of that series
that are convertible may be surrendered for conversion, if applicable, and where
notices and demands to or upon the Company in respect of the Debt Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 12.4. MONEY FOR DEBT SECURITIES; PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities, it will, by 10:00 a.m. (New York City time) or
on each due date of the principal (and premium, if any) or interest on any Debt
Securities of such series, deposit with any such Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless
any such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
Notwithstanding any term herein to the contrary, in no instance shall
the Trustee be under any duty or obligation (i) to maintain any office or to act
in any capacity as an agent for any purpose under this Indenture (or any
supplement hereto) outside the United States, or (ii) to act as a Paying Agent
in respect of any currency other than Dollars.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Debt Securities of
such series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on
the Debt Securities of such series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Debt Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company upon Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be transmitted in the manner and to the extent
provided by Section 1.5, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 12.5. CORPORATE EXISTENCE.
Subject to Article X, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
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SECTION 12.6. COVENANTS AS TO THE RGA CAPITAL TRUSTS.
For so long as the Trust Securities of the applicable RGA Capital Trust
remain Outstanding, the Company shall (a) maintain 100% direct or indirect
ownership of the Common Securities of such RGA Capital Trust; provided, however,
that any permitted successor of the Company under this Indenture may succeed to
the Company's ownership of the Common Securities; (b) not voluntarily terminate,
wind up or liquidate the RGA Capital Trust, and (c) use its reasonable efforts
to cause such RGA Capital Trust (i) to remain a business trust, except in
connection with a distribution of Debt Securities, the redemption of all of the
Trust Securities of such RGA Capital Trust, or certain mergers, consolidations
or amalgamations, each as permitted by the Trust Agreement of the applicable RGA
Capital Trust; and (ii) to otherwise continue not to be treated as an
association taxable as a corporation or partnership for United States federal
income tax purposes; and (iii) use its reasonable efforts to cause each holder
of Trust Securities to be treated as owning an individual beneficial interest in
the Debt Securities. In connection with the distribution of the Debt Securities
to the holders of the Preferred Securities issued by the related RGA Capital
Trust upon a Dissolution Event, the Company shall use its commercially
reasonable efforts to list such Debt Securities on The New York Stock Exchange,
Inc., in the Nasdaq National Market of the National Association of Securities
Dealers, Inc. ("Nasdaq"), or on or in such other exchange or self-regulatory
organization as the Preferred Securities are then listed.
SECTION 12.7. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 12.5 and 12.6 (and, if so
specified pursuant to Section 3.1, any other covenant not set forth herein and
specified pursuant to Section 3.1 to be applicable to the Securities of any
series, except as otherwise provided pursuant to Section 3.1) with respect to
the Debt Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Debt
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent expressly so waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 12.8. COVENANTS AS TO PURCHASES.
Except upon the exercise by the Company of its right to redeem the Debt
Securities pursuant to Section 13.8 upon the occurrence and continuation of a
Special Event, the Company shall not purchase any Debt Securities, in whole or
in part, from the applicable RGA Capital Trust prior to the period or periods
within which, or the date or dates on which, such Debt Securities may be
redeemed, as specified pursuant to Section 3.1.
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SECTION 12.9. ORIGINAL ISSUE DISCOUNT.
On or before December 15 of each year during which any Debt Securities
are Outstanding, the Company shall furnish to each Paying Agent such information
as may be reasonably requested by such Paying Agent in order that each Paying
Agent may prepare the information that is required to report for such year on
Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Code. Such information shall include the amount of any original issue discount
includible in income for each authorized minimum denomination of principal
amount at Stated Maturity of any Debt Securities Outstanding during such year,
if any.
SECTION 12.10. CERTAIN RESTRICTIONS.
If Debt Securities are issued to the applicable RGA Capital Trust or a
trustee of such an RGA Capital Trust in connection with the issuance of Trust
Securities by such RGA Capital Trust and (a) there shall have occurred an Event
of Default; (b) the Company shall be in default with respect to any obligations
under the Preferred Securities Guarantee relating to such RGA Capital Trust; or
(c) the Company shall have exercised its right to defer payment of interest
pursuant to Section 18.1 and such Extended Interest Period is continuing, then
(i) the Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (A) dividends or distributions
in common stock of the Company, or any declaration of a non-cash dividend in
connection with the implementation of a shareholder rights plan, or the issuance
of stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, and (B) purchases of common stock of the
Company related to the rights under any of the Company's benefit plans for its
directors, officers or employees); (ii) the Company shall not make any payment
of principal of (and premium, if any) or interest on or repay, repurchase or
redeem any debt securities issued by the Company which rank pari passu with or
junior in interest to the Debt Securities of a series issued under this
Indenture; provided, however, that notwithstanding the foregoing the Company may
make payments pursuant to its obligations under the applicable Preferred
Securities Guarantee; and (iii) the Company shall not redeem, purchase or
acquire less than all of the Outstanding Debt Securities of such series or any
of the Preferred Securities associated with such Debt Securities.
ARTICLE XIII.
REDEMPTION OF DEBT SECURITIES
SECTION 13.1. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before their
Maturity shall be redeemable in accordance with their terms and (except as
otherwise provided pursuant to Section 3.1 for Debt Securities of any series) in
accordance with this Article.
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SECTION 13.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem (or, in the case of Discount
Securities, to permit the Holders to elect to surrender for redemption) any Debt
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all of the Debt Securities of any
series pursuant to Section 13.3, the Company shall, at least 30 days before the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Debt Securities of such series to be redeemed. In the
case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restrictions.
SECTION 13.3. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED.
Except in the case of a redemption in whole of the Registered
Securities of a series, if less than all the Debt Securities of any series are
to be redeemed at the election of the Company, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 3.2 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 3.2 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple thereof,
except as otherwise set forth in the applicable form of Debt Securities. In any
case when more than one Registered Security of such series is registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 13.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, not less
than 30
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days and not more than 60 days prior to the Redemption Date to the Holders of
Debt Securities of any series to be redeemed in whole or in part pursuant to
this Article XIII, in the manner provided in Section 1.5. Any notice so given
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. Failure to give such notice, or any defect in such
notice to the Holder of any Debt Security of a series designated for redemption,
in whole or in part, shall not affect the sufficiency of any notice of
redemption with respect to the Holder of any other Debt Security of such series.
In the case of any redemption of Debt Securities prior to the expiration of any
restriction on such redemption specified pursuant to Section 3.1 with respect to
the Debt Securities of a given series or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with any such restriction.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in this
Indenture or the terms of the Debt Securities of such series or a
supplemental indenture establishing such series, if such be the case,
together with a brief statement of the facts permitting such
redemption,
(4) if less than all Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Debt
Securities to be redeemed, including a representation to the effect
that any such partial redemption shall not result in the delisting or
termination of inclusion, as applicable, of the related Preferred
Securities,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon, if any, shall cease to accrue on and after said
date,
(6) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the Redemption Price,
and
(7) that the redemption is for a sinking fund, if such is
the case.
SECTION 13.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (New York City time) on the Redemption Date
for any Debt Securities, 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 12.4) an amount of money in the
Currency or Currencies in which such Debt Securities are denominated (except as
provided pursuant to Section 3.1) sufficient to pay
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the Redemption Price of such Debt Securities or any portions thereof which are
to be redeemed on that date.
SECTION 13.6. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 3.1
or 3.10), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 3.1, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 3.7.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 13.7. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or such other office or agency of the
Company as is specified pursuant to Section 3.1 or at an office of the Trustee,
with, if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Security Registrar and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing, and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Debt Security without service charge, a new Debt Security or Debt Securities of
the same series, of like tenor and form, 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 of the Debt Security so surrendered.
In the case of a Debt Security providing appropriate space for such notation, at
the option of the Holder thereof, the Trustee, in lieu of delivering a new Debt
Security or Debt Securities as aforesaid, may make a notation on such Debt
Security of the payment of the redeemed portion thereof.
SECTION 13.8. SPECIAL EVENT REDEMPTION.
If a Special Event has occurred and is continuing, then, unless
otherwise specified pursuant to Section 3.1 for the Debt Securities of any
series, notice of redemption shall be given by the Company, or at the Company's
request, by the Trustee in the name and at the expense of the Company, in the
manner provided in Section 1.5, to the Holders of such Debt Securities not less
than 30 days nor more than 60 days prior to the Redemption Date. Such redemption
shall be, in whole but not in part, for cash
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within 180 days following the occurrence of such Special Event (the "180-Day
Period") at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption plus Deferred Payments, if any (the "Special Redemption Price"),
provided that if at the time there is available to the Company the opportunity
to eliminate, within the 180-Day Period, a Tax Event by taking some ministerial
action (a "Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the related RGA Capital Trust or the holders of the Trust
Securities issued by such RGA Capital Trust, the Company shall pursue such
Ministerial Action in lieu of redemption, and, provided further, that the
Company shall have no right to redeem the Debt Securities while it is pursuing
any Ministerial Action pursuant to its obligations hereunder. The Special
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Company determines, provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Special Redemption Price by 10:00 a.m., New York time, on the date such Special
Redemption Price is to be paid.
ARTICLE XIV.
SINKING FUNDS
SECTION 14.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
pursuant to Section 3.1 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt Securities
of any series, the amount of any cash sinking fund payment may be subject to
reduction as provided in Section 14.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 14.2. SATISFACTION OF MANDATORY SINKING FUND PAYMENTS WITH
DEBT SECURITIES.
In lieu of making all or any part of a mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option, at any time no more than sixteen months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Debt Securities of such series theretofore purchased or otherwise acquired by
the Company, except Debt Securities of such series which have been redeemed
through the application of mandatory sinking fund payments pursuant to the terms
of the Debt Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the Debt
Securities of such series were originally issued by the Company by way of bona
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fide sale or other negotiation for value, provided that such Debt Securities
shall not have been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 14.3. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency or Currencies in which the Debt
Securities of such series are denominated (except as provided pursuant to
Section 3.1) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Debt Securities of such series pursuant to Section 14.2
and whether the Company intends to exercise its rights to make a permitted
optional sinking fund payment with respect to 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, the sinking fund payment due on the next
succeeding sinking fund payment date for such series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of the Debt
Securities of such series subject to a mandatory sinking fund payment without
the right to deliver or credit Debt Securities as provided in Section 14.2 and
without the right to make any optional sinking fund payment with respect to such
series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Debt Securities of any particular series shall be applied by the
Trustee (to the extent it is acting as a Paying Agent with respect to Dollars)
or other Paying Agent appointed by the Company (or by the Company if the Company
is acting as its own Paying Agent) 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 immediately following the date of such
payment) to the redemption of Debt Securities of such series at the Redemption
Price specified in such Debt Securities with respect to the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee (to the extent it
is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or by the Company if the Company is acting as its own
Paying Agent) to the redemption of Debt Securities shall be added to the next
sinking fund payment received by the Trustee (to the extent it is acting as a
Paying Agent with respect to Dollars) or other Paying Agent appointed by the
Company (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 12.4) for such series and, together with
such payment (or such amount so segregated) shall be applied in accordance with
the provisions of this Section. Any and all sinking fund moneys with respect to
the Debt Securities of any particular series held by the Trustee (to the extent
it is acting as a Paying Agent with respect to Dollars) or other Paying Agent
appointed by the Company (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 12.4) on the last sinking
fund
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payment date with respect to Debt Securities of such series and not held for the
payment or redemption of particular Debt Securities of such series shall be
applied by the Trustee (to the extent it is acting as a Paying Agent with
respect to Dollars) or other Paying Agent appointed by the Company (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 13.3 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 13.4. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Section 13.6.
On or before 10:00 a.m. (New York City time) on each sinking fund
payment date, the Company shall pay to the Trustee (to the extent it is acting
as a Paying Agent with respect to Dollars) or other Paying Agent appointed by
the Company (or, if the Company is acting as its own Paying Agent, the Company
shall segregate and hold in trust as provided in Section 12.4) in cash a sum, in
the Currency or Currencies in which Debt Securities of such series are
denominated (except as provided pursuant to Sections 3.1 or 3.10), equal to the
principal and any interest accrued to the Redemption Date for Debt Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section.
Neither the Trustee, any Paying Agent nor the Company shall redeem any
Debt Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt 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 the Debt Securities of such series, except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee or applicable Paying Agent (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Debt Securities if cash
sufficient for that purpose shall be deposited with the Trustee or such other
Paying Agent as provided above (or segregated by the Company) for that purpose
in accordance with the terms of this Article. Except as aforesaid, any moneys in
the sinking fund for 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 the Debt Securities of such series; provided, however, that
in case such default or Event of Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on or prior to the next
sinking fund payment date for the Debt Securities of such series on which such
moneys may be applied pursuant to the provisions of this Section.
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ARTICLE XV.
DEFEASANCE
SECTION 15.1. APPLICABILITY OF ARTICLE.
If, pursuant to Section 3.1, provision is made for the defeasance of
Debt Securities of a series, and if the Debt Securities of such series are
Registered Securities and denominated and payable only in Dollars (except as
provided pursuant to Section 3.1 and subject to the proviso in the last sentence
of this paragraph) then the provisions of this Article shall be applicable
except as otherwise specified pursuant to Section 3.1 for Debt Securities of
such series. Defeasance provisions, if any, for Debt Securities denominated
and/or payable in a Foreign Currency or Currencies may be specified pursuant to
Section 3.1; provided, however, that nothing herein or therein shall obligate
the Trustee (without its consent, at its sole option) to hold or maintain any
account, or act as Paying Agent with respect to, any Foreign Currency or
Currencies.
SECTION 15.2. DEFEASANCE UPON DEPOSIT OF MONEYS OR U.S. GOVERNMENT
OBLIGATIONS.
At the Company's option, either (a) the Company shall be deemed to have
been Discharged (as defined below) from its obligations with respect to Debt
Securities of any series ("legal defeasance option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Section 10.1 with respect to Debt Securities of any series (and, if
so specified pursuant to Section 3.1, any other obligation of the Company or
restrictive covenant added for the benefit of such series pursuant to Section
3.1) ("covenant defeasance option") at any time after the applicable conditions
set forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Debt Securities of such series (i) money
in an amount, or (ii) U.S. Government Obligations (as defined below)
which through the payment of interest and principal in respect thereof
in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect
to (i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of principal
(including any mandatory sinking fund payments) of and premium, if any,
and interest on, the Outstanding Debt Securities of such series on the
dates such installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect
to the Debt Securities of that series to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with
respect to the Debt Securities of any series;
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(3) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it
is bound;
(4) if the Debt Securities of such series are then listed
on any national securities exchange or included in Nasdaq, the Company
shall have delivered to the Trustee an Opinion of Counsel or a letter
or other document from such exchange to the effect that the Company's
exercise of its option under this Section would not cause such Debt
Securities to be delisted or would not cause the inclusion of such Debt
Securities to be terminated, as applicable;
(5) no Event of Default or event (including such deposit)
which, with notice or lapse of time or both, would become an Event of
Default with respect to the Debt Securities of such series shall have
occurred and be continuing on the date of such deposit and, with
respect to the legal defeasance option only, no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after such date;
(6) the Company shall have delivered to the Trustee an
Opinion of Counsel or a ruling from the Internal Revenue Service to the
effect that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or Discharge; and
(7) no event or condition shall exist that, pursuant to
the provisions of Article XVII, would prevent the Company from making
payments of the principal of (and premium, if any) or interest on the
Securities of such series on the date of such deposit.
Notwithstanding the foregoing, if the Company exercises its covenant defeasance
option and an Event of Default under Section 5.1(6) or Section 5.1(7) or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after the date of such deposit, the obligations of
the Company referred to under the definition of covenant defeasance option with
respect to such Debt Securities shall be reinstated.
Notwithstanding the Company's exercise of the covenant defeasance option, the
Company may subsequently exercise the legal defeasance option.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Debt Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Debt Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of Holders of Debt Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of (and premium, if any) and
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interest on such Debt Securities when such payments are due, (B) the Company's
obligations with respect to the Debt Securities of such series under Sections
3.4, 3.5, 3.6, 12.3 and 15.3 and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States 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 the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 15.3. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST.
All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 15.2 in respect of Debt Securities of a series shall be held
in trust and applied by it, in accordance with the provisions of such Debt
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Debt Securities, of all sums due
and to become due thereon for principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the extent
required by law.
SECTION 15.4. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay or return to the
Company upon Company Request any moneys or U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of (and
premium, if any) and interest on the Debt Securities of any series for which
money or U.S. Government Obligations have been deposited pursuant to Section
15.2.
The provisions of the last paragraph of Section 12.4 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of any series of Debt Securities for
which money or U.S. Government Obligations have been deposited pursuant to
Section 15.2.
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ARTICLE XVI.
CONVERSION
SECTION 16.1. APPLICABILITY; CONVERSION PRIVILEGE.
Except as otherwise specified pursuant to Section 3.1 for Debt
Securities of any series, the provisions of this Article XVI shall be applicable
to any Debt Securities that are convertible into Common Stock. If so provided
pursuant to Section 3.1 with respect to the Debt Securities of any series, the
Holder of a Debt Security of such series shall have the right, at such Holder's
option, to convert, in accordance with the terms of such series of Debt
Securities and this Article XVI, all or any part (in a denomination of, unless
otherwise specified pursuant to Section 3.1 with respect to Securities of such
series, $1,000 in principal amount or any integral multiple of such amount, as
applicable) of such Debt Security into shares of Common Stock or, as to any Debt
Securities called for redemption, at any time prior to the time and date fixed
for such redemption (unless the Company shall default in the payment of the
Redemption Price, in which case such right shall not terminate at such time and
date).
SECTION 16.2. CONVERSION PROCEDURE; CONVERSION PRICE; FRACTIONAL
SHARES.
(a) Each Debt Security to which this Article is applicable shall be
convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified pursuant to Section 3.1 with respect to the Debt
Securities of such series, into fully paid and nonassessable shares (calculated
to the nearest 1/100th of a share) of Common Stock. The Debt Securities will be
converted into shares of Common Stock at the Conversion Price therefor. No
payment or adjustment shall be made in respect of dividends on the Common Stock
or accrued interest on a converted Debt Security except as described in Section
16.9. The Company may, but shall not be required, in connection with any
conversion of Debt Securities, to issue a fraction of a share of Common Stock
and, if the Company shall determine not to issue any such fraction, the Company
shall, subject to Section 16.3(4), make a cash payment (calculated to the
nearest cent) equal to such fraction multiplied by the Closing Price of the
Common Stock on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Debt Security shall be entitled to convert
the same into Common Stock, such Holder shall surrender such Debt Security duly
endorsed to the Company or in blank, at the office of the Conversion Agent or at
such other place or places, if any, specified pursuant to Section 3.1, and shall
deliver a Conversion Request to the Conversion Agent at said office or place
that he elects to convert the same and shall state in writing therein the
principal amount of Debt Securities to be converted and the name or names (with
addresses) in which he wishes the certificate or certificates for Common Stock
to be issued; provided, however, that no Debt Security or portion thereof shall
be accepted for conversion unless the principal amount of such Debt Security or
such portion, when added to the principal amount of all other Debt Securities or
portions thereof then being surrendered by the Holder thereof for conversion,
exceeds the then effective Conversion Price with respect thereto. If more than
one Debt Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares of Common Stock which shall be deliverable
upon conversion shall be computed
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on the basis of the aggregate principal amount of the Debt Securities (or
specified portions thereof to the extent permitted thereby) so surrendered.
Subject to the next succeeding sentence, the Company will, as soon as
practicable thereafter, issue and deliver at said office or place to such Holder
of a Debt Security, or to his nominee or nominees, certificates for the number
of full shares of Common Stock to which he shall be entitled as aforesaid,
together, subject to the last sentence of paragraph (a) above, with cash in lieu
of any fraction of a share to which he would otherwise be entitled. In addition,
a holder of Preferred Securities may exercise its right under the Trust
Agreement to exchange such Preferred Securities for Debt Securities which shall
be converted into Common Stock by delivering to the Conversion Agent a
Conversion Request setting forth the information called for by the first
sentence of this paragraph (b) and directing the Conversion Agent (i) to
exchange such Preferred Security for a portion of the Debt Securities held by
the applicable RGA Capital Trust (at an exchange rate of $__ principal amount of
Debt Securities for each Preferred Security) and (ii) to immediately convert
such Debt Securities, on behalf of the Holder, into Common Stock pursuant to
this Article XVI and, if such Preferred Securities are in certificate form,
surrendering such Preferred Securities, duly endorsed to the Company or in
blank. Unless otherwise specified for a series of Debt Securities pursuant to
Section 3.1, so long as any Preferred Securities of a related RGA Capital Trust
are outstanding, the RGA Capital Trust shall not convert any Debt Securities
except pursuant to a Conversion Request delivered to the Conversion Agent by a
holder of Preferred Securities of the applicable RGA Capital Trust. The Company
shall not be required to deliver certificates for shares of Common Stock while
the stock transfer books for such stock or the Security Register are duly closed
for any purpose, but certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books or Security
Register. A Debt Security shall be deemed to have been converted as of the close
of business on the date of the surrender of such Debt Security for conversion as
provided above, and the Person or Persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
Holder or Holders of such Common Stock as of the close of business on such date.
In case any Debt Security shall be surrendered for partial conversion, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the Debt Securities so surrendered, without
charge to such Holder (subject to the provisions of Section 16.8), a new Debt
Security or Securities in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Debt Security.
SECTION 16.3. ADJUSTMENT OF CONVERSION PRICE FOR COMMON STOCK.
The Conversion Price with respect to any Debt Security which is
convertible into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, (i) pay a
dividend in shares of its Common Stock to holders of Common Stock, (ii)
combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iii) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (iv)
make a distribution in shares of Common Stock to holders of Common
Stock, then the Conversion Price in effect immediately
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before such action shall be adjusted so that the Holders of such Debt
Securities, upon conversion thereof into Common Stock immediately
following such event, shall be entitled to receive the kind and amount
of shares of capital stock of the Company which they would have owned
or been entitled to receive upon or by reason of such event if such
Debt Securities had been converted immediately before the record dated
(or, if no record date, the effective date) for such event. An
adjustment made pursuant to this Section 16.3(1) shall become effective
retroactively immediately after the record date in the case of a
dividend or distribution and shall become effective retroactively
immediately after the effective date in the case of a subdivision or
combination. For the purposes of this Section 16.3(1), each Holder of
Debt Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution (provided
that if the kind or amount of securities receivable upon such dividend,
subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, issue rights or
warrants to all holders of shares of its Common Stock entitling them
(for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per
share less than the Current Market Price of the Common Stock at such
record date (treating the price per share of the securities convertible
into Common Stock as equal to (x) the sum of (i) the price for a unit
of the security convertible into Common Stock and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), the Conversion Price
with respect to such Debt Securities shall be adjusted so that it shall
equal the price determined by dividing the Conversion Price in effect
immediately prior to the date of issuance of such rights or warrants by
a fraction, the numerator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered
for subscription or purchase (or into which the convertible securities
so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock outstanding on the date
of issuance of securities which the aggregate offering price of the
total number of shares of securities so offered for subscription or
purchase (or the aggregate purchase price of the convertible securities
so offered plus the aggregate amount of any additional consideration
initially payable upon conversion of such securities into Common Stock)
would purchase at such Current Market Price of the Common Stock. Such
adjustment shall become effective retroactively immediately after the
record date for the determination of shareholders entitled to receive
such rights or warrants.
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(3) In the case the Company shall, at any time or from time to
time while any of such Debt Securities are outstanding, distribute to
all holders of shares of its Common Stock (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation and the Common Stock is not
changed or exchanged) cash, evidences of its indebtedness, securities
or assets (excluding (i) regular periodic cash dividends in amounts, if
any, determined from time to time by the Board of Directors, (ii)
dividends payable in shares of Common Stock for which adjustment is
made under Section 16.3(1) or (iii) rights or warrants to subscribe for
or purchase securities of the Company (excluding those referred to in
Section 16.3(2))), then in each such case the Conversion Price with
respect to such Debt Securities determined by dividing the Conversion
Price in effect immediately prior to the date of such distribution by a
fraction, the numerator of which shall be the Current Market Price of
the Common Stock on the record date referred to below, and the
denominator of which shall be such Current Market Price of the Common
Stock less the then fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive) of
the portion of the cash or assets or evidences of indebtedness or
securities so distributed or of such subscription rights or warrants
applicable to one share of Common Stock (provided that such denominator
shall never be less than 1.0); provided however, that no adjustment
shall be made with respect to any distribution of rights to purchase
securities of the Company if a Holder of Debt Securities would
otherwise be entitled to receive such rights upon conversion at any
time of such Debt Securities into Common Stock unless such rights are
subsequently redeemed by the Company, in which case such redemption
shall be treated for purposes of this section as a dividend on the
Common Stock. Such adjustment shall become effective retroactively
immediately after the record date for the determination of shareholders
entitled to receive such distribution; and in the event that such
distribution is not so made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 16.3(1), 16.3(2), and 16.3(3), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income
tax purposes.
(5) In any case in which this Section 16.3 shall require that
any adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five (5) Trading Days following the filing of the statement referred to
in Section 16.5) issuing to the Holder of any Debt Securities converted
after such record date the shares of Common Stock and other capital
stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company issuable
upon such conversion on the basis of the Conversion Price prior to
adjustment; provided, however, that the Company shall deliver to
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such Holder a due bill or other appropriate instrument evidencing such
Holder's right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(6) All calculations under this Section 16.3 shall be made to
the nearest cent or one-hundredth of a share of security, with one-half
cent and 0.005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 16.3, the Company
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease of at
least 1% of such price. Any lesser adjustment shall be carried forward
and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1%
in such price. Any adjustments under this Section 16.3 shall be made
successively whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 16.3, the Holder of any Debt
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Stock into which the Debt Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Debt Security shall be subject to adjustment from time to time
in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in subparagraphs (1)
through (6) of this Section 16.3, and the provisions of Sections 16.1,
16.2 and 16.4 through 16.9 with respect to the Common Stock shall apply
on like or similar terms to any such other shares and the determination
of the Board of Directors as to any such adjustment shall be
conclusive.
(8) No adjustment shall be made pursuant to this Section: (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Stock or (ii) subject to 16.3(5)
hereof, with respect to any Debt Security that is converted prior to
the time such adjustment otherwise would be made.
SECTION 16.4. CONSOLIDATION OR MERGER OF THE COMPANY.
In case of either (a) any consolidation or merger to which the Company
is a party, other than a merger or consolidation in which the company is the
surviving or continuing corporation and which does not result in a
reclassification of, or change (other than a change in par value or from par
value to no par value or from no par value to par value, as a result of a
subdivision or combination) in, outstanding shares of Common Stock or (b) any
sale or conveyance of all or substantially all of the property and assets of the
Company to another Person, then each Debt Security then outstanding shall be
convertible from and after such merger, consolidation, sale or conveyance of
property and assets into the kind and amount of shares of stock or other
securities and property (including cash) receivable upon such consolidation,
merger, sale or conveyance by a holder of the number of shares of Common Stock
into which such Debt
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Securities would have been converted immediately prior to such consolidation,
merger, sale or conveyance, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
XVI (and assuming such holder of Common Stock failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash or other property
(including cash) receivable upon such consolidation, merger, sale or conveyance
(provided that, if the kind or amount of securities, cash or other property
(including cash) receivable upon such consolidation, merger, sale or conveyance
is not the same for each nonelecting share, then the kind and amount of
securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance for each nonelecting share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
nonelecting shares or securities)). The Company shall not enter into any of the
transactions referred to in clause (a) or (b) of the preceding sentence unless
effective provision shall be made so as to give effect to the provisions set
forth in this Section 16.4. The provisions of this Section 16.4 shall apply
similarly to successive consolidations, mergers, sales or conveyances.
SECTION 16.5. NOTICE OF ADJUSTMENT.
Whenever an adjustment in the Conversion Price with respect to a series
of Debt Securities is required:
(1) the Company shall forthwith place on file with the
Trustee and any Conversion Agent for such Securities a certificate of
the Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be given by the Company, or at the Company's request, by the
Trustee in the name and at the expense of the Company, in the manner
provided in Section 1.5. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
SECTION 16.6. NOTICE IN CERTAIN EVENTS.
In case:
(1) of a consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
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(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article XVI;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Debt Securities, and shall cause to be
given, to the Holders of record of applicable Debt Securities in the manner
provided in Section 1.5, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article XVI,
or, if a record is not to be taken, the date as of which the holders of record
or Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article XVI is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2), or (3) of
this Section.
SECTION 16.7. COMPANY TO RESERVE STOCK; REGISTRATION; LISTING.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Debt Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding Debt
Securities into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Debt Securities
would be held by a single holder); provided, however, that nothing contained
herein shall preclude the Company from satisfying its obligations in respect of
the conversion of the Debt Securities by delivery of purchased shares of Common
Stock which are held in the treasury of the Company. The Company shall from time
to time, in accordance with the laws of the State of Delaware, use its best
efforts to cause the authorized amount of the Common Stock to be increased if
the aggregate of the authorized amount of the Common Stock remaining unissued
and the issued shares of such Common Stock in its treasury (other than any such
shares reserved for issuance in any other connection) shall not be sufficient to
permit the conversion of all Debt Securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Debt Securities hereunder require registration with or approval of
any governmental authority before such shares or securities may be issued upon
such conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company will endeavor to list the shares of Common Stock
required to be delivered
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upon conversion of the Debt Securities prior to such delivery upon the principal
national securities exchange upon which the outstanding Common Stock is listed
at the time of such delivery.
SECTION 16.8. TAXES ON CONVERSION.
The Company shall pay any and all documentary, stamp or similar issue
or transfer taxes that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Debt Securities pursuant hereto. The
Company shall not, however, be required to pay any such tax which may be payable
in respect of any transfer involved in the issue or delivery of shares of Common
Stock or the portion, if any, of the Debt Securities which are not so converted
in a name other than that in which the Debt Securities so converted were
registered (in case of Registered Securities), and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of such tax or has established to the satisfaction of the
Company that such tax has been paid.
SECTION 16.9. CONVERSION AFTER RECORD DATE.
If any Debt Securities are surrendered for conversion subsequent to the
record date preceding an Interest Payment Date but on or prior to such Interest
Payment Date (except Debt Securities called for redemption on a Redemption Date
between such record date and Interest Payment Date), the Holder of such Debt
Securities at the close of business on such record date shall be entitled to
receive the interest payable on such Debt Securities on such Interest Payment
Date notwithstanding the conversion thereof. Debt Securities surrendered for
conversion during the period from the close of business on any record date next
preceding any Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of Debt Securities which have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds and in the Currency
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the Debt Securities being surrendered for conversion.
Except as provided in this Section 16.9, no adjustments in respect of payments
of interest on Debt Securities surrendered for conversion or any dividends or
distributions of interest on the Common Stock issued upon conversion shall be
made upon the conversion of any Debt Securities.
SECTION 16.10. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board of Directors must make
pursuant to this Article is conclusive.
SECTION 16.11. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this
Article should be made, how it should be made or what it should be. The Trustee
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Debt Securities. The Trustee shall not be responsible
for the Company's
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failure to comply with this Article. Each Conversion Agent other than the
Company shall have the same protection under this Section as the Trustee.
ARTICLE XVII.
SUBORDINATION
SECTION 17.1. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting any Debt Securities
agrees, that, unless otherwise specified pursuant to Section 3.1 hereof with
respect to any series of Debt Securities, the indebtedness evidenced by the Debt
Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article XVII, to the prior payment in full of all Senior
Indebtedness, and that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness, without any act or
notice of acceptance hereof or reliance hereon.
SECTION 17.2. CERTAIN DEFINITIONS.
"Senior Indebtedness" means the principal, premium, if any, and
interest on (i) all indebtedness of the Company, whether outstanding on the date
hereof or thereafter created, incurred or assumed (including, without
limitation, such indebtedness issued or to be issued under the Company's Senior
Indenture and Subordinated Indenture, each dated as of December 19, 2001), that
is for borrowed money, or evidenced by a note or similar instrument given in
connection with the acquisition of any business, properties or assets, including
securities, (ii) any indebtedness of any other Person of the kind described in
the preceding clause (i) for the payment of which the Company is responsible or
liable as guarantor or otherwise and (iii) amendments, modifications, renewals,
extensions, deferrals and refundings of any such indebtedness. Senior
Indebtedness shall continue to be Senior Indebtedness and to be entitled to the
benefits of the subordination provisions of this Article XVII irrespective of
any amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall not include (A)
indebtedness incurred for the purchase of goods or materials or for services
obtained in the ordinary course of business and (B) any indebtedness which by
its terms is expressly made pari passu with or subordinated to the Securities.
SECTION 17.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY; ETC.
In the event of:
(1) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property;
(2) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings;
(3) any assignment by the company for the benefit of
creditors; or
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(4) any other marshalling of the assets of the Company,
all Senior Indebtedness (including, without limitation, interest accruing after
the commencement of any such proceeding, assignment or marshalling of assets)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made by the Company on account of the
Debt Securities. In any such event, any payment or distribution, whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in the
subordination provisions of this Indenture with respect to the indebtedness
evidenced by the Debt Securities, to the payment of all Senior Indebtedness at
the time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but for the
provisions of this Article XVII) be payable or deliverable in respect of the
Debt Securities (including any such payment or distribution which may be payable
or deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities) shall be paid or delivered
directly to the holders of Senior Indebtedness, or to their representative or
trustee, in accordance with the priorities then existing among such holders
until all Senior Indebtedness shall have been paid in full.
SECTION 17.4. DEFAULT ON SENIOR INDEBTEDNESS.
If (i) the Company defaults in the payment of any principal of (or
premium, if any) or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or
declaration or otherwise or (ii) an event of default occurs with respect to any
Senior Indebtedness permitting the holders thereof to accelerate the maturity
thereof and written notice of such event of default (requesting that payments on
the Debt Securities cease) is given to the Company by the holders of Senior
Indebtedness, then unless and until such default in payment or event of default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property or securities, by set-off or otherwise)
shall be made or agreed to be made on account of the Debt Securities or interest
thereon or in respect of any repayment, redemption, retirement, purchase or
other acquisition of the Debt Securities.
SECTION 17.5. WHEN DISTRIBUTION MUST BE PAID OVER.
Unless otherwise specified pursuant to Section 3.1 hereof with respect
to any series of Debt Securities, if a distribution is made to the Trustee or
any Holder at a time when a Responsible Officer of the Trustee or such Holder
has actual knowledge that because of this Article XVII such distribution should
not have been made to it, the Trustee or such Holder who receives the
distribution shall hold it in trust for the benefit of, and, upon written
request, shall pay it over to, the holders of Senior Indebtedness as their
interests may appear, or their agent or representative or the trustee under the
indenture or other agreement (if any) pursuant to which Senior Indebtedness may
have been issued, as their respective interests may appear, for application to
the payment of all principal, premium, if any, and interest then payable with
respect to any Senior Indebtedness.
101
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XVII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XVII, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
SECTION 17.6. NOTICE BY COMPANY.
The Company shall promptly notify in writing the Trustee and any Paying
Agent of any facts known to the Company that would cause a payment with respect
to the Debt Securities to violate this Article XVII, but failure to give such
notice shall not affect the subordination of the Debt Securities to the Senior
Indebtedness provided in this Article XVII.
SECTION 17.7. SUBROGATION.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. After
all Senior Indebtedness is paid in full and until the Debt Securities are paid
in full, Holders shall be subrogated (equally and ratably with all other
indebtedness as to which the right to receive payment is pari passu with the
Debt Securities) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that distributions
otherwise payable to the Holders have been applied to the payment of Senior
Indebtedness, and such payments or distributions received by any Holder of
Securities, by reason of such subrogation, of cash, securities or other property
which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the Holders of Debt
Securities, on the other, be deemed to be a payment by the Company on account of
Senior Indebtedness, and not on account of Debt Securities.
SECTION 17.8. RELATIVE RIGHTS.
This Article XVII defines the relative rights of Holders and holders of
Senior Indebtedness. Unless otherwise specified pursuant to Section 3.1 hereof
with respect to any series of Debt Securities, nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Debt Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior
Indebtedness; or
102
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article XVII to pay principal of
or interest on Debt Securities on the due date, the failure is still a Default
or Event of Default.
SECTION 17.9. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness
constituting the Securities by any act or failure to act on the part of the
Company.
SECTION 17.10. DISTRIBUTION.
Upon any payment or distribution of assets of the Company referred to
in this Article XVII, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the Holders for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other Debt of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XVII.
SECTION 17.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article XVII or any other
provision of this Indenture, neither the Trustee nor any Paying Agent shall be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment or distribution by the Trustee or such Paying Agent, or
the taking of any action by the Trustee or such Paying Agent, and the Trustee or
such Paying Agent may continue to make payments on the Debt Securities unless,
in the case of the Trustee, and in the case of such Paying Agent as long as the
Trustee is such Paying Agent, a Responsible Officer shall have received at the
Corporate Trust Office of the Trustee, and in the case of a Paying Agent other
than the Trustee, it shall have received, in each case at least two Business
Days prior to the date of such payment, written notice of facts that would cause
any such payment with respect to the Securities to violate this Article XVII.
The Trustee or any Paying Agent, as applicable, shall promptly provide a copy of
such notice to the Holders. Nothing in this Article XVII shall limit the right
of the holders of Senior Indebtedness to recover payments as contemplated
elsewhere in this Article XVII or impair the claims of, or payments to, the
Trustee under or pursuant to Section 6.7 hereof.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee subject
to Trust Indenture Act Sections 310(b) and 311. Any Paying Agent may do the
same.
103
SECTION 17.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Debt Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article XVII
(to the extent the same may be modified pursuant to Section 3.1 hereof with
respect to any series of Debt Securities), and appoints the Trustee his
attorney-in-fact for any and all such purposes.
ARTICLE XVIII.
EXTENDED INTEREST PERIOD
SECTION 18.1. EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debt Securities of any series, to defer payments of interest by extending
the interest payment period of such Debt Securities for an Extended Interest
Period not exceeding 20 consecutive quarters, during which Extended Interest
Period no interest shall be due and payable; provided that no Extended Interest
Period may extend beyond the Stated Maturity for the principal of the Debt
Securities of such series. At the end of the Extended Interest Period, the
Company shall calculate (and deliver such calculation to the Trustee) and pay on
the next Interest Payment Date all interest accrued and unpaid on the Debt
Securities of such series, including any Additional Payments and Additional
Interest (together, the "Deferred Payments") that shall be payable to the
Holders of Registered Securities of such series on the first Regular Record Date
after the end of the Extended Interest Period. Before the termination of any
Extended Interest Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Maturity Date of such Debt
Securities. Upon the termination of any Extended Interest Period and upon the
payment of all Deferred Payments then due, the Company may commence a new
Extended Interest Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extended Interest Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest and Additional Interest accrued during an Extended
Interest Period.
SECTION 18.2. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of a series
of the Debt Securities at the time the Company selects an Extended Interest
Period, the Company shall give written notice to the Administrative Trustees,
the Property Trustee and the Trustee of its selection of such Extended Interest
Period two Business Days before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by the Trust are payable; or
(ii) the date the Trust is required to give notice of the record date, or the
date such Distributions are payable, to The New York Stock Exchange, Inc.,
Nasdaq or other applicable national exchange or self-regulatory organization or
to holders of the Preferred Securities issued by the Trust, but in any event at
least one Business Day before such record date.
104
(b) If the Property Trustee is not the only holder of the Debt
Securities of a series at the time the Company selects an Extended Interest
Period, the Company shall give the Holders of such Debt Securities and the
Trustee written notice of its selection of such Extended Interest Period at
least two Business Days before the earlier of (i) the next succeeding Interest
Payment Date; or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to The New York Stock Exchange,
Nasdaq or other applicable national exchange or self-regulatory organization or
to holders of the Debt Securities.
(c) The quarter in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 18.2 shall be counted as one of the 20 quarters permitted
in the maximum Extended Interest Period permitted under Section 18.1.
SECTION 18.3. LIMITATION ON TRANSACTIONS.
If (a) the Company shall exercise its right to defer payment of
interest as provided in Section 18.1; or (b) there shall have occurred any Event
of Default, then (i) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (A)
dividends or distributions in common stock of the Company, or any declaration of
a non-cash dividend in connection with the implementation of a shareholder
rights plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, and (B) purchases
of common stock of the Company related to the rights under any of the Company's
benefit plans for its directors, officers or employees); (ii) the Company shall
not make any payment of principal of (and premium, if any) or interest on or
repay, repurchase or redeem any debt securities issued by the Company which rank
pari passu with or junior in interest to the Debt Securities of a series issued
under this Indenture; provided, however, that notwithstanding the foregoing the
Company may make payments pursuant to its obligations under the applicable
Preferred Securities Guarantee; and (iii) the Company shall not redeem, purchase
or acquire less than all of the Outstanding Debt Securities of such series or
any of the Preferred Securities associated with such Debt Securities.
SECTION 18.4. APPLICABILITY OF ARTICLE.
Notwithstanding anything in this Indenture to the contrary, the
provisions of this Article XVIII only shall apply to Debt Securities of any
series to which this Article expressly is made applicable, as specified pursuant
to Section 3.1 for any such series of Debt Securities).
105
ARTICLE XIX.
RIGHT OF DIRECT ACTION; SETOFF
SECTION 19.1. ACKNOWLEDGEMENT OF RIGHTS; RIGHT OF SETOFF.
(a) The Company acknowledges that, with respect to any Debt Securities
held as the assets of the applicable RGA Capital Trust or a trustee of such an
RGA Capital Trust, if the Property Trustee fails to enforce its rights under
this Indenture as the holder of the Debt Securities of any series held as the
assets of such an RGA Capital Trust, any holder of Preferred Securities of such
RGA Capital Trust may institute legal proceedings directly against the Company
to enforce such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any other
person or entity. Notwithstanding the foregoing, and notwithstanding the
provisions of Section 5.7, if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay principal of
(and premium, if any) or interest on the Debt Securities of any series at the
Stated Maturity (or in the case of redemption, on the Redemption Date, or if the
redemption is a Special Redemption, on the date of redemption), the Company
acknowledges that a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of (or
premium, if any) or interest on the Debt Securities of such series having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date specified in the
Debentures of such series.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company shall have the right to setoff any payment it is
otherwise required to make hereunder in respect of any Trust Securities to the
extent that the Company has previously made, or is concurrently making, a
payment to the holder of such Trust Securities under the Preferred Securities
Guarantee or in connection with a proceeding for enforcement of payment of the
principal of (or premium, if any) or interest on the Debt Securities of any
series directly brought by holders of any Trust Securities related to such
series.
(c) For so long as any of the Preferred Securities remain Outstanding,
if, upon an Event of Default with respect to a particular series of Debt
Securities, the Property Trustee fails or the Holders of not less than 25% in
aggregate principal amount of such outstanding Debt Securities of such series
fail to declare the principal of all of such Debt Securities to be immediately
due and payable, the Holders of at least 25% in aggregate liquidation amount of
the Preferred Securities then Outstanding and affected thereby shall have the
right to declare the principal of all of the Debt Securities of such series to
be immediately due and payable by a notice in writing to the Company, as
depositor and the Property Trustee; and upon any such declaration such principal
amount of and the accrued interest on, and any premium due, on all of the Debt
Securities of such series shall become immediately due and payable, provided
that the payment of principal of (and premium, if any) and interest on such Debt
Securities shall remain subordinated to the extent provided in this Indenture.
106
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: /s/ TODD C. LARSON
----------------------------
Title:
-------------------------
Attest:
/s/ JACK B. LAY
- ------------------------
Title:
Seal
THE BANK OF NEW YORK
as Trustee
By: /s/ ROBERT A. MASSIMILLO
----------------------------
Title:
-------------------------
Reconciliation and tie between Trust Indenture Act of 1939
and Junior Subordinated Indenture, dated as of December 18, 2001
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
ss.310 (a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.9
(b) 6.8, 6.10
(c) Not Applicable
ss.311 (a) 6.13(a)
(b) 6.13(b)
(c) Not Applicable
ss.312 (a) 7.1, 7.2(a)
(b) 7.2(b)
(c) 7.2(c)
ss.313 (a) 7.3(a)
(b) 7.3(b)
(c) 7.3(a),
7.3(c)
(d) 7.3(d)
ss.314 (a) 7.4, 12.2
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
ss.315 (a) 6.1(a), 6.1(c)
(b) 6.2, 7.3(a)(7)
(c) 6.1(b)
(d)(1) 6.1(a)
(d)(2) 6.1(c)(2)
(d)(3) 6.1(c)(3)
(e) 5.14
ss.316 (a)(1)(A) 5.2, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) Not Applicable
ss.317 (a)(1) 5.3
(a)(2) 5.4
(b) 12.4
ss.318 1.6
- ---------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
2
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
RGA CAPITAL TRUST III
This Certificate of Trust of RGA Capital Trust III (the "Trust") is
being executed and filed on behalf of the Trust by the undersigned, as trustees,
to form a Statutory Trust under the Delaware Statutory Trust Act (12 Del. C.
Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed hereby is RGA
Capital Trust III.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19771.
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
In witness whereof, the undersigned have duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ JAMES LONGSHAW
----------------------------------
Name: James Longshaw
--------------------------------
Title: Senior Vice President
---------------------------------
/s/ JACK B. LAY
---------------------------------------
Jack B. Lay
Trustee
/s/ A. GREIG WOODRING
---------------------------------------
A. Greig Woodring
Trustee
/s/ TODD C. LARSON
---------------------------------------
Todd C. Larson
Trustee
EXHIBIT 4.7
TRUST AGREEMENT
OF
RGA CAPITAL TRUST III
THIS TRUST AGREEMENT (the "Trust Agreement") is made as of August 4,
2003, by and among Reinsurance Group of America, Incorporated, as Depositor (the
"Depositor"), and the individual trustees identified on the signature page
hereto (the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "RGA
Capital Trust III", in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby declare that they will
hold the trust estate in trust for such persons as are or may become entitled to
a beneficial interest in the trust estate. It is the intention of the parties
hereto that the Trust created hereby constitutes a statutory trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. Code ss.3801 et seq. (the
"Statutory Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the office of the Secretary of State
of the State of Delaware in the form attached hereto.
3. The Depositor and the Trustees intend to enter into an
amended and restated Trust Agreement, satisfactory to each such party to provide
for the contemplated operation of the Trust created hereby and the Preferred and
Common Securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as required
by law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may take all actions deemed proper
as are necessary to effect the transactions contemplated herein.
4. The Depositor, as Depositor of the Trust, is hereby
authorized, in its discretion, (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and to execute, in each case, on behalf
of the Trust, (a) a Registration Statement on Form S-3, or an appropriate
successor form (the "1933 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Preferred Securities of the Trust, (b) any preliminary prospectus or
prospectus or supplement thereto relating to the Preferred Securities of the
Trust required to be filed pursuant to the 1933 Act, and (c) a Registration
Statement on Form 8-A or other appropriate form (the "1934 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) if and at such time as
determined by the Depositor, to file with the New York Stock Exchange or other
national exchange (an "Exchange"), or the Nasdaq National Market ("Nasdaq") of
the National Association of Securities Dealers, Inc. ("NASD"), and to execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities of the Trust to be listed on an
Exchange, or to be designated for inclusion in
Nasdaq; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; and (v) to execute, deliver and perform on
behalf of the Trust an underwriting agreement with one or more underwriters
relating to the offering of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, an applicable Exchange, the
NASD, or state securities or "Blue Sky" laws to be executed on behalf of the
Trust by one or more of the Trustees, each of the Trustees, in his, her or its
capacity as a trustee of the Trust, is hereby authorized, and to the extent so
required, directed to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing, it being understood that The Bank of New
York (Delaware), in its capacity as a trustee of the Trust, shall not be
required to join in any such filing or to execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
such Exchange, the NASD, or state securities or "Blue Sky" laws. In connection
with the filings referred to above, the Depositor and Jack B. Lay, A. Greig
Woodring, and Todd C. Larson, each as Trustees and not in their individual
capacities, hereby constitutes and appoints Jack B. Lay, A. Greig Woodring and
Todd C. Larson, and each of them, as their true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for the Depositor or
such Trustee or in the Depositor's or such Trustees' name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the applicable Exchange and
administrators of the state securities or "Blue Sky" laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor, which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one trustee of the Trust shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Depositor.
7. The Trustees (the "Fiduciary Indemnified Persons") shall not
be liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the Trust, the
Depositor and any holder of the Trust's securities being a "Covered Person") for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by the Fiduciary Indemnified Persons in good faith on
behalf of the Trust and in a manner the Fiduciary Indemnified Persons reasonably
believed to be within the scope of authority conferred on the Fiduciary
Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary
Indemnified Persons shall be liable for any such loss, damage or claim incurred
by reason of the Fiduciary Indemnified Person's gross negligence, bad faith or
willful misconduct with respect to such acts of omissions.
The Fiduciary Indemnified Persons shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any person as to matters the
Fiduciary Indemnified Persons reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of Trust's securities might properly be paid.
8. The Depositor agrees, to the fullest extent permitted by
applicable law:
(a) to indemnify and hold harmless each Fiduciary
Indemnified Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of gross
negligence, bad faith or willful misconduct with respect to such acts or
omissions; and
(b) to advance expenses (including legal fees) incurred
by a Fiduciary Indemnified Person in defending any claim, demand, action, suit
or proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Persons to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
The provisions of this section 8 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
9. This Trust Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws.
[The remainder of this page has been left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ JAMES LONGSHAW
------------------------------------
Name: James Longshaw
--------------------------------
Title: Senior Vice President
---------------------------------
/s/ JACK B. LAY
---------------------------------------
Jack B. Lay, as Trustee
/s/ A. GREIG WOODRING
---------------------------------------
A. Greig Woodring, as Trustee
/s/ TODD C. LARSON
---------------------------------------
Todd C. Larson, as Trustee
EXHIBIT 4.8
CERTIFICATE OF TRUST
OF
RGA CAPITAL TRUST IV
This Certificate of Trust of RGA Capital Trust IV (the "Trust") is
being executed and filed on behalf of the Trust by the undersigned, as trustees,
to form a Statutory Trust under the Delaware Statutory Trust Act (12 Del. C.
Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is RGA
Capital Trust IV.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware is The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19771.
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
In witness whereof, the undersigned have duly executed this Certificate
of Trust in accordance with Section 3811(a)(1) of the Act.
THE BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ JAMES LONGSHAW
-----------------------------------
Name: James Longshaw
---------------------------------
Title: Senior Vice President
---------------------------------
/s/ JACK B. LAY
---------------------------------------
Jack B. Lay
Trustee
/s/ A. GREIG WOODRING
---------------------------------------
A. Greig Woodring
Trustee
/s/ TODD C. LARSON
---------------------------------------
Todd C. Larson
Trustee
EXHIBIT 4.9
TRUST AGREEMENT
OF
RGA CAPITAL TRUST IV
THIS TRUST AGREEMENT (the "Trust Agreement") is made as of August 4,
2003, by and among Reinsurance Group of America, Incorporated, as Depositor (the
"Depositor"), and the individual trustees identified on the signature page
hereto (the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "RGA
Capital Trust IV", in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $10. The Trustees hereby declare that they will
hold the trust estate in trust for such persons as are or may become entitled to
a beneficial interest in the trust estate. It is the intention of the parties
hereto that the Trust created hereby constitutes a statutory trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. Code ss.3801 et seq. (the
"Statutory Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust in the office of the Secretary of State
of the State of Delaware in the form attached hereto.
3. The Depositor and the Trustees intend to enter into an
amended and restated Trust Agreement, satisfactory to each such party to provide
for the contemplated operation of the Trust created hereby and the Preferred and
Common Securities referred to therein. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as required
by law or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustees may take all actions deemed proper
as are necessary to effect the transactions contemplated herein.
4. The Depositor, as Depositor of the Trust, is hereby
authorized, in its discretion, (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and to execute, in each case, on behalf
of the Trust, (a) a Registration Statement on Form S-3, or an appropriate
successor form (the "1933 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Preferred Securities of the Trust, (b) any preliminary prospectus or
prospectus or supplement thereto relating to the Preferred Securities of the
Trust required to be filed pursuant to the 1933 Act, and (c) a Registration
Statement on Form 8-A or other appropriate form (the "1934 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) if and at such time as
determined by the Depositor, to file with the New York Stock Exchange or other
national exchange (an "Exchange"), or the Nasdaq National Market ("Nasdaq") of
the National Association of Securities Dealers, Inc. ("NASD"), and to execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities of the Trust to be listed on an
Exchange, or to be designated for inclusion in
Nasdaq; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; and (v) to execute, deliver and perform on
behalf of the Trust an underwriting agreement with one or more underwriters
relating to the offering of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, an applicable Exchange, the
NASD, or state securities or "Blue Sky" laws to be executed on behalf of the
Trust by one or more of the Trustees, each of the Trustees, in his, her or its
capacity as a trustee of the Trust, is hereby authorized, and to the extent so
required, directed to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing, it being understood that The Bank of New
York (Delaware), in its capacity as a trustee of the Trust, shall not be
required to join in any such filing or to execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
such Exchange, the NASD, or state securities or "Blue Sky" laws. In connection
with the filings referred to above, the Depositor and Jack B. Lay, A. Greig
Woodring, and Todd C. Larson, each as Trustees and not in their individual
capacities, hereby constitutes and appoints Jack B. Lay, A. Greig Woodring and
Todd C. Larson, and each of them, as their true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for the Depositor or
such Trustee or in the Depositor's or such Trustees' name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, the applicable Exchange and
administrators of the state securities or "Blue Sky" laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor, which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one trustee of the Trust shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Depositor.
7. The Trustees (the "Fiduciary Indemnified Persons") shall not
be liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the Trust, the
Depositor and any holder of the Trust's securities being a "Covered Person") for
any loss, damage or claim incurred by reason of any act or omission
performed or omitted by the Fiduciary Indemnified Persons in good faith on
behalf of the Trust and in a manner the Fiduciary Indemnified Persons reasonably
believed to be within the scope of authority conferred on the Fiduciary
Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary
Indemnified Persons shall be liable for any such loss, damage or claim incurred
by reason of the Fiduciary Indemnified Person's gross negligence, bad faith or
willful misconduct with respect to such acts of omissions.
The Fiduciary Indemnified Persons shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any person as to matters the
Fiduciary Indemnified Persons reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to holders of Trust's securities might properly be paid.
8. The Depositor agrees, to the fullest extent permitted by
applicable law:
(a) to indemnify and hold harmless each Fiduciary
Indemnified Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by the
Fiduciary Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement, except that no Fiduciary
Indemnified Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of gross
negligence, bad faith or willful misconduct with respect to such acts or
omissions; and
(b) to advance expenses (including legal fees) incurred
by a Fiduciary Indemnified Person in defending any claim, demand, action, suit
or proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Persons to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
The provisions of this section 8 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
9. This Trust Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws.
[The remainder of this page has been left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
THE BANK OF NEW YORK (DELAWARE),
as Delaware trustee
By: /s/ JAMES LONGSHAW
------------------------------------
Name: James Longshaw
--------------------------------
Title: Senior Vice President
---------------------------------
/s/ JACK B. LAY
---------------------------------------
Jack B. Lay, as Trustee
/s/ A. GREIG WOODRING
---------------------------------------
A. Greig Woodring, as Trustee
/s/ TODD C. LARSON
---------------------------------------
Todd C. Larson, as Trustee
EXHIBIT 5.1
[LETTERHEAD OF REINSURANCE GROUP OF AMERICA, INCORPORATED]
August 25, 2003
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
Ladies and Gentlemen:
I am General Counsel and Secretary of Reinsurance Group of America,
Incorporated, a Missouri corporation (the "Company"), and have acted as counsel
for the Company in connection with the Registration Statement on Form S-3 (Nos.
333- , 333- -01 and 333- -02 (collectively, the "Registration
Statement") filed by the Company and RGA Capital Trust III and RGA Capital Trust
IV, Delaware statutory trusts (the "Trusts" and each a "Trust"), with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to (i) shares of common stock of the
Company par value $0.01 per share (the "Common Stock"); (ii) warrants to
purchase Common Stock (the "Common Stock Warrants"); (iii) shares of Preferred
Stock of the Company par value $0.01 per share (the "Preferred Stock"), which
may be represented by depositary shares (the "Depositary Shares") evidenced by
depositary receipts (the "Receipts"); (iv) warrants to purchase Preferred Stock
(the "Preferred Stock Warrants"); (v) debt securities, which may be senior (the
"Senior Debt Securities"), subordinated (the "Subordinated Debt Securities") or
junior subordinated (the "Junior Subordinated Debt Securities") (collectively,
the "Debt Securities"); (vi) warrants to purchase Debt Securities (the "Debt
Security Warrants") and (vii) warrants to purchase other securities ("Other
Warrants" and collectively with the Common Stock Warrants, the Preferred Stock
Warrants and the Debt Security Warrants, the "Securities Warrants"); (viii)
contracts for the purchase and sale of Common Stock, Preferred Stock, Debt
Securities, Depositary Shares or Securities Warrants (the "Purchase Contracts");
and (ix) Units (the "Units") of the Company, consisting of one or more of the
Purchase Contracts, Common Stock, Preferred Stock, Debt Securities, debt
obligations of third parties, including U.S. Treasury Securities (the "Third
Party Debt Securities"), securing the holder's obligation to purchase the Common
Stock or the Preferred Stock under the Purchase Contracts, Depositary Shares,
Securities Warrants or Trust Preferred Securities (as defined below). The
Registration Statement also relates to the registration under the Act of trust
preferred securities of the Trusts (the "Trust Preferred Securities") and
guarantees of the Trust Preferred Securities by the Company (the "Guarantees").
The Common Stock, the Preferred Stock, the Depositary Shares, the Debt
Securities, the Guarantees, the Purchase Contracts, the Securities Warrants and
the Units are hereinafter referred to collectively as the "Securities." The
Securities may be issued and sold or delivered from time to time as set forth in
the Registration Statement, any amendment thereto, the prospectus contained
therein (the "Prospectus") and supplements to the Prospectus (the "Prospectus
Supplements") filed pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $800,000,000 or the equivalent thereof in one or
more foreign currencies or composite currencies.
The Senior Debt Securities thereof will be issued under a Senior
Indenture, dated as of December 19, 2001, between the Company and The Bank of
New York, as Trustee (the "Senior Trustee"), as supplemented (the "Senior
Indenture"). The Subordinated Debt Securities will be issued under an indenture
(the "Subordinated Indenture") between the Company and the subordinated
indenture trustee (the "Subordinated Indenture Trustee"). The Junior
Subordinated Debt Securities will be issued under a Junior Subordinated
Indenture, dated as of December 18, 2001, between the Company and The Bank of
New York, as Trustee (the "Junior Subordinated Indenture"), as supplemented (the
"Junior Subordinated Indenture"). The Senior Indenture, the Subordinated
Indenture and the Junior Subordinated Indenture are hereinafter referred to
collectively as the "Indentures."
The Purchase Contracts will be issued pursuant to a purchase contract
agreement (the "Purchase Contract Agreement") between the Company and the
purchase contract agent (the "Purchase Contract Agent").
The Depositary Shares will be issued pursuant to a deposit agreement
between the Company and the depositary agent (the "Depositary Agent").
The Guarantees will be issued pursuant to a guarantee agreement (the
"Guarantee Agreement") between the Company and the guarantee trustee (the
"Guarantee Trustee").
The Common Stock Warrants will be issued under a common stock warrant
agreement (the "Common Stock Warrant Agreement") between the Company and the
common stock warrant agent. The Preferred Stock Warrants will be issued under a
preferred stock warrant agreement (the "Preferred Stock Warrant Agreement")
between the Company and the preferred stock warrant agent. The senior debt
security warrants will be issued under a senior debt security warrant agreement
(the "Senior Debt Security Warrant Agreement") among the Company, the senior
debt security warrant agent and the Senior Trustee. The subordinated debt
security warrants will be issued under a subordinated debt security warrant
agreement (the "Subordinated Debt Security Warrant Agreement") among the
Company, the subordinated debt security warrant agent and the Subordinated
Indenture Trustee. The Other Warrants will be issued under a warrant agreement
(the "Other Warrant Agreement") between the Company, the applicable Trustee and
the warrant agent. The Common Stock Warrant Agreement, the Preferred Stock
Warrant Agreement, the Senior Debt Security Warrant Agreement, the Subordinated
Debt Security Warrant Agreement and the Other Warrant Agreement are hereinafter
referred to collectively as the "Warrant Agreements." Each party to a Warrant
Agreement other than the Company is referred to hereinafter as a "Counterparty."
The Units will be issued under a unit agreement (the "Unit Agreement")
between the Company and the unit agent (the "Unit Agent").
In connection herewith, I have examined and relied without
investigation as to matters of fact upon the Registration Statement,
certificates, statements and results of inquiries of public officials and
officers and representatives of the Issuer, and such other documents, corporate
records, certificates and instruments as I have deemed necessary or appropriate
to enable me to render the opinions expressed herein. I have assumed the
genuineness of all signatures on all documents examined by me, the legal
competence and
capacity of each person that executed documents, the authenticity of documents
submitted to me as originals, and the conformity to authentic originals of
documents submitted to me as certified or photocopies.
I also have assumed that: (1) at the time of execution, authentication,
issuance and delivery of the Senior Debt Securities, the Senior Indenture will
be the valid and legally binding obligation of the Senior Indenture Trustee; (2)
at the time of execution, authentication, issuance and delivery of the
Subordinated Debt Securities, the Subordinated Indenture will be the valid and
legally binding obligation of the Subordinated Indenture Trustee; (3) at the
time of execution, authentication, issuance and delivery of the Junior
Subordinated Debt Securities, the Junior Subordinated Indenture will be the
valid and legally binding obligation of the Junior Subordinated Indenture
Trustee; (4) at the time of execution, issuance and delivery of the Receipts,
the Deposit Agreement will be the valid and legally binding obligation of the
Depositary Agent; (5) at the time of execution, issuance and delivery of the
Purchase Contracts, the Purchase Contract Agreement will be the valid and
legally binding obligation of the Purchase Contract Agent; (6) at the time of
the execution, issuance and delivery of the Guarantees, the Guarantee Agreement
will be the valid and legally binding obligation of the Guarantee Trustee; (7)
at the time of execution, countersignature, issuance and delivery of any
Securities Warrants, the related Warrant Agreement will be the valid and legally
binding obligation of each Counterparty thereto; and (8) at the time of the
execution, countersignature, issuance and delivery of the Units, the related
Unit Agreement will be the valid and legally binding obligation of the Unit
Agent.
I have assumed further that (1) at the time of execution,
authentication, issuance and delivery of the Senior Debt Securities, the Senior
Indenture will have been duly authorized, executed and delivered by the Company;
(2) at the time of execution, authentication, issuance and delivery of the
Subordinated Debt Securities, the Subordinated Indenture will have been duly
authorized, executed and delivered by the Company; (3) at the time of execution,
authentication, issuance and delivery of the Junior Subordinated Debt
Securities, the Junior Subordinated Indenture will have been duly authorized,
executed and delivered by the Company; (4) at the time of execution, issuance
and delivery of the Purchase Contracts, the Purchase Contract Agreement will
have been duly authorized, executed and delivered by the Company; (5) at the
time of execution, issuance and delivery of the Receipts, the Deposit Agreement
will have been duly authorized, executed and delivered by the Company; (6) at
the time of execution, countersignature, issuance and delivery of any Securities
Warrants, the related Warrant Agreement will have been duly authorized, executed
and delivered by the Company; (7) at the time of execution, issuance and
delivery of the Guarantees, the Guarantee Agreement will have been duly
authorized, executed and delivered by the Company; (8) at the time of execution,
issuance and delivery of the Units, the Unit Agreement will have been duly
authorized, executed and delivered by the Company and (9) at the time of the
issuance and sale of any of the Securities, the terms of the Securities, and
their issuance and sale, will have been established so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company.
Based upon the foregoing, in reliance thereon and subject to the
exceptions, qualifications and limitations stated herein and the effectiveness
of the Registration Statement under the Act, I am of the opinion that:
1. With respect to the Common Stock, assuming the (a) taking by the
Board of Directors of the Company, a duly constituted and acting committee of
such board or duly authorized officers of the Company (such Board of Directors,
committee or authorized officers being referred to herein as the "Board"), of
all necessary corporate action to authorize and approve the issuance of the
Common Stock and (b) due issuance and delivery of the Common Stock, upon payment
therefor in accordance with the applicable definitive purchase, underwriting or
similar agreement approved by the Board, or upon the exercise of a securities
warrant for conversion of a convertible Debt Security, the Common Stock will be
validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock, assuming the (a) taking by the
Board of all necessary corporate action to authorize and approve the issuance of
the Preferred Stock, (b) due filing of the Articles of Amendment to the Articles
of Incorporation of the Company and (c) due issuance and delivery of the
Preferred Stock, upon payment therefor in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board,
the Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect to the Receipts, assuming the (a) taking by the Board
of all necessary corporate action to authorize and approve the issuance and
terms of the related Preferred Stock, (b) due filing of the Articles of
Amendment to the Articles of Incorporation of the Company authorizing and
establishing the terms of the Preferred Stock, (c) terms of the Depositary
Shares and of their issuance and sale have been duly established in conformity
with the terms of the Deposit Agreement, (d) due issuance and delivery of the
related Preferred Stock, upon payment of the consideration therefor provided for
in the applicable definitive purchase, underwriting or similar agreement
approved by the Board, and (e) Receipts evidencing the Depositary Shares are
duly issued against the deposit of the Preferred Stock in accordance with the
Deposit Agreement, such Receipts will be validly issued and will entitle the
holders thereof to the rights specified in the Deposit Agreement.
4. With respect to the Debt Securities, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
any Debt Securities, the terms of the offering thereof and related matters by
the Board and (b) due execution, authentication, issuance and delivery of such
Debt Securities, upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board and otherwise in accordance with the provisions of the applicable
Indenture, such Debt Securities will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with
their terms.
5. With respect to the Guarantees, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
the Guarantees, the terms of the offering thereof and related matters by the
Board, (b) due execution, issuance and delivery of the Guarantees upon payment
of the consideration thereof provided for in
the applicable definitive purchase, underwriting or similar agreement approved
by the Board and otherwise in accordance with the provisions of the applicable
Guarantee Agreement, such Guarantees will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
6. With respect to the Purchase Contracts, assuming the (a) taking of
all necessary corporate action to authorize and approve the issuance and terms
of the Purchase Contracts, the terms of the offering thereof and related matters
by the Board and (b) due execution, issuance and delivery of the Purchase
Contracts, upon payment of the consideration for such Purchase Contracts
provided for in the applicable definitive purchase, underwriting or similar
agreement approved by the Board and otherwise in accordance with the provisions
of the applicable Purchase Contract Agreement, the Purchase Contracts will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms.
7. With respect to the Securities Warrants, assuming the (a) taking of
all necessary corporate action to authorize and approve the issuance and terms
of the Securities Warrants, the terms of the offering thereof and related
matters by the Board and (b) due execution, countersignature, issuance and
delivery of such Securities Warrants, upon payment of the consideration for such
Securities Warrants provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board and otherwise in
accordance with the provisions of the applicable Warrant Agreement, such
Securities Warrants will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms.
8. With respect to the Units, assuming the (a) taking of all necessary
corporate action by the Board to authorize and approve the issuance, execution
and terms of any Units and the related Unit Agreements, any Purchase Contracts,
any Debt Securities or any Trust Preferred Securities, in each case, which are a
component of the Units, the terms of the offering thereof and related matters,
(b) taking of all necessary corporate action to authorize and approve the
issuance and terms of the Third Party Debt Securities which are a component of
the Units and related matters by the board of directors of each third party, a
duly constituted and acting committee of such board or duly authorized officers
of each third party and (c) due execution, authentication, in the case of Debt
Securities and Third Party Debt Securities, issuance and delivery of (1) the
Units, (2) such Purchase Contracts (3) such Debt Securities, (4) such Trust
Preferred Securities and (5) such Third Party Debt Securities, in each case upon
the payment of the consideration therefor provided for (i) in the applicable
definitive purchase, underwriting or similar agreement approved by the Board and
in accordance with the provisions of the applicable Purchase Contract Agreement,
in the case of such Purchase Contracts, (ii) the applicable Indenture, in the
case of such Debt Securities, (iii) the applicable Certificate of Trust and
Trust Agreement, in the case of such Trust Preferred Securities and (iv) the
applicable indenture, in the case of such Third Party Debt Securities, such
Units will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
In addition to the limitations set forth above, the opinions set forth
herein are further limited by, subject to and based upon the following:
(a) My opinions set forth in paragraphs 3 through 8 above are subject
to and limited by the effects of (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, receivership, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors' rights generally,
(ii) general equitable principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief and other equitable
remedies, regardless of whether enforceability is considered in a proceeding in
equity or at law, (iii) requirements that a claim with respect to any Securities
denominated other than in United States dollars (or a judgment denominated other
than in United States dollars with respect to such a claim) be converted into
United States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (iv) governmental authority to limit, delay or
prohibit the making of payments outside the United States or in foreign currency
or composite currency.
(b) My opinions expressed above are limited to the laws of the State of
Missouri and the federal laws of the United States of America. The opinions
expressed herein are based upon the law in effect (and published or otherwise
generally available) on the date hereof, and I assume no obligation to revise or
supplement these opinions should such law be changed by legislative action,
judicial decision or otherwise. In rendering my opinions, I have not considered,
and hereby disclaim any opinion as to, the application or impact of any laws,
decisions, rules or regulations of any other jurisdiction, court or
administrative agency.
(c) You have informed me that you intend to issue the Securities from
time to time on a delayed or continuous basis, and this opinion is limited to
the laws, including the rules and regulations, as in effect on the date hereof.
I understand that prior to issuing any Securities you will afford me an
opportunity to review the operative documents pursuant to which such Securities
are to be issued (including the applicable prospectus supplement) and will file
such supplement or amendment to this opinion (if any) as I may reasonably
consider necessary or appropriate by reason of the terms of such Securities.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus. I also consent to your filing copies of this opinion
as an exhibit to the Registration Statement with agencies of such states as you
deem necessary in the course of complying with the laws of such states regarding
the offering and sale of the Securities. In giving such consent, I do not
thereby concede that I am within the category of persons whose consent is
required under Section 7 of the Act or the Rules and Regulations of the
Commission thereunder.
Very truly yours,
/s/ James E. Sherman
James E. Sherman
General Counsel and Secretary
EXHIBIT 5.2
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
August 21, 2003
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
Re: RGA Capital Trust III and RGA Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for RGA Capital
Trust III ("Trust III") and RGA Capital Trust IV ("Trust IV"), each a Delaware
statutory trust, in connection with the matters set forth herein. Trust III and
Trust IV are hereinafter collectively referred to as the "Trusts" and sometimes
hereinafter individually referred to as a "Trust". At your request, this opinion
is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust III (the "Trust III
Certificate of Trust"), as filed in the office of the
Secretary of State of the State of Delaware (the
"Secretary of State") on August 4, 2003;
(b) The Certificate of Trust of Trust IV (the "Trust IV
Certificate of Trust," together with the Trust III
Certificate of Trust, the "Certificates of Trust"),
as filed in the office of the Secretary of State on
August 4, 2003;
(c) The Trust Agreement of Trust III, dated as of August
4, 2003, among Reinsurance Group of America,
Incorporated, a Missouri corporation (the "Company"),
and the trustees of Trust III named therein;
(d) The Trust Agreement of Trust IV, dated as of August
4, 2003, among the Company and the trustees of Trust
IV named therein;
(e) The Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary
prospectus (the "Prospectus"), relating to, among
other things, the Preferred Securities of the Trusts
representing preferred beneficial interests in the
assets of the Trusts (each, a "Preferred Security"
and collectively, the "Preferred Securities"), in the
form to be filed by the
RGA Capital Trust III & RGA Capital Trust IV
c/o Reinsurance Group of America, Incorporated
August 21, 2003
Page 2
Company and the Trusts with the Securities and
Exchange Commission on or about August 21, 2003;
(f) A form of Amended and Restated Trust Agreement for
each of the Trusts, to be entered into among the
Company and the trustees of the Trust named therein
(collectively, the "Trust Agreements" and
individually, a "Trust Agreement"), incorporated by
reference in the Registration Statement (including
Exhibit D thereto); and
(g) A Certificate of Good Standing for each of the
Trusts, dated August 21, 2003, obtained from the
Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (g) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of
the Trust Agreements will constitute the entire agreement among the parties
thereto with respect to the subject matter thereof, including with respect to
the creation, operation and termination of the applicable Trust, and that the
Trust Agreements and the Certificates of Trust will be in full force and effect
and will not be amended, (ii) except to the extent provided in paragraph 1
below, the due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trusts (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreements and the Registration Statement, and (vii) that the Preferred
Securities are authenticated, issued and sold to the Preferred Security Holders
in
RGA Capital Trust III & RGA Capital Trust IV
c/o Reinsurance Group of America, Incorporated
August 21, 2003
Page 3
accordance with the Trust Agreements and the Registration Statement. We have not
participated in the preparation of the Registration Statement or the Prospectus
and assume no responsibility for their contents.
This opinion is limited to the Delaware Statutory Trust Act,
including the statutory provisions and all applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting these laws, and we
have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly
existing in good standing as a statutory trust under the Statutory Trust Act.
2. The Preferred Securities of each Trust will be, when
issued, validly issued, fully paid and nonassessable beneficial interests in the
assets of the applicable Trust, subject to the qualifications set forth in
paragraph 3 below.
3. The Preferred Security Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreements.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
GCK/gmh
EXHIBIT 5.3
[BRYAN CAVE LETTERHEAD]
August 25, 2003
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
Ladies and Gentlemen:
We have acted as special New York counsel to Reinsurance Group of America,
Incorporated, a Missouri corporation (the "Company"), in connection with the
Registration Statement on Form S-3 (the "Registration Statement") filed by the
Company and RGA Capital Trust III and RGA Capital Trust IV, each a Delaware
statutory trust (each, a "Trust", and collectively, the "Trusts"), with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), relating to (i) shares of common stock of the
Company, par value $0.01 per share (the "Common Stock"); (ii) warrants to
purchase Common Stock (the "Common Stock Warrants"); (iii) shares of Preferred
Stock of the Company, par value $0.01 per share, (the "Preferred Stock"), which
may be represented by depositary shares (the "Depositary Shares") evidenced by
depositary receipts (the "Receipts"); (iv) warrants to purchase Preferred Stock
(the "Preferred Stock Warrants"); (v) debt securities, which may be senior (the
"Senior Debt Securities"), subordinated (the "Subordinated Debt Securities") or
junior subordinated (the "Junior Subordinated Debt Securities" and, collectively
with the Senior Debt Securities and the Subordinated Debt Securities, the "Debt
Securities"); (vi) warrants to purchase Debt Securities (the "Debt Security
Warrants"); (vii) warrants to purchase other securities ("Other Warrants" and,
collectively with the Common Stock Warrants, the Preferred Stock Warrants and
the Debt Security Warrants, the "Securities Warrants"); (viii) contracts for the
purchase and sale of Common Stock, Preferred Stock, Debt Securities, Depositary
Shares or Securities Warrants (the "Purchase Contracts"); and (ix) Units (the
"Units") of the Company, consisting of one or more of Common Stock, Preferred
Stock, Depositary Shares, Debt Securities, Securities Warrants, Purchase
Contracts, Trust Preferred Securities (as hereinafter defined), Guarantees (as
hereinafter defined) and debt obligations of third parties, including U.S.
Treasury Securities (the "Third Party Debt Securities"). The Registration
Statement also relates to the registration under the Act of trust preferred
securities of the Trusts (the "Trust Preferred Securities") and guarantees of
the Trust Preferred Securities by the Company (the "Guarantees"). The Common
Stock, the Preferred Stock, the Depositary Shares, the Debt Securities, the
Securities Warrants, the Purchase Contracts, the Guarantees and the Units are
hereinafter referred to collectively as the "Securities." The Securities may be
issued and sold or delivered from time to time
Reinsurance Group of America, Incorporated
August 25, 2003
Page 2
as set forth in the Registration Statement, any amendment thereto, the
prospectus contained therein (the "Prospectus") and supplements to the
Prospectus (the "Prospectus Supplements") filed pursuant to Rule 415 under the
Act for an aggregate initial offering price not to exceed $800,000,000 or the
equivalent thereof in one or more foreign currencies or composite currencies.
The Senior Debt Securities will be issued under a Senior Indenture, dated as of
December 19, 2001, between the Company and The Bank of New York, as Trustee (the
"Senior Trustee"), as supplemented (the "Senior Indenture"). The Subordinated
Debt Securities will be issued under an indenture (the "Subordinated Indenture")
between the Company and the subordinated indenture trustee (the "Subordinated
Indenture Trustee"). The Junior Subordinated Debt Securities will be issued
under a Junior Subordinated Indenture, dated as of December 18, 2001, between
the Company and The Bank of New York, as Trustee (the "Junior Subordinated
Indenture Trustee"), as supplemented (the "Junior Subordinated Indenture"). The
Senior Indenture, the Subordinated Indenture and the Junior Subordinated
Indenture are hereinafter referred to collectively as the "Indentures."
The Depositary Shares will be issued pursuant to a deposit agreement between the
Company and a depositary agent to be specified therein (the "Depositary Agent").
The Common Stock Warrants will be issued under a common stock warrant agreement
(the "Common Stock Warrant Agreement") between the Company and a common stock
warrant agent to be specified therein. The Preferred Stock Warrants will be
issued under a preferred stock warrant agreement (the "Preferred Stock Warrant
Agreement") between the Company and a preferred stock warrant agent to be
specified therein. The senior debt security warrants will be issued under a
senior debt security warrant agreement (the "Senior Debt Security Warrant
Agreement") among the Company, the senior debt security warrant agent and the
Senior Trustee. The subordinated debt security warrants will be issued under a
subordinated debt security warrant agreement (the "Subordinated Debt Security
Warrant Agreement") among the Company, a subordinated debt security warrant
agent to be specified therein and the Subordinated Indenture Trustee. The Other
Warrants will be issued under a warrant agreement (the "Other Warrant
Agreement") between the Company, the applicable Trustee and a warrant agent to
be specified therein. The Common Stock Warrant Agreement, the Preferred Stock
Warrant Agreement, the Senior Debt Security Warrant Agreement, the Subordinated
Debt Security Warrant Agreement and the Other Warrant Agreement are hereinafter
referred to collectively as the "Warrant Agreements." Each party to a Warrant
Agreement other than the Company is referred to hereinafter as a "Counterparty."
The Purchase Contracts will be issued pursuant to a purchase contract agreement
(the "Purchase Contract Agreement") between the Company and a purchase contract
agent to be specified therein (the "Purchase Contract Agent").
Reinsurance Group of America, Incorporated
August 25, 2003
Page 3
The Units will be issued under a unit agreement (the "Unit Agreement") between
the Company and a unit agent to be specified therein (the "Unit Agent").
The Guarantees will be issued pursuant to a guarantee agreement (the "Guarantee
Agreement") between the Company and a guarantee trustee to be specified therein
(the "Guarantee Trustee").
In connection herewith, we have examined and relied without investigation as to
matters of fact upon the Registration Statement, including the Senior Indenture,
the Junior Subordinated Indenture, the form of the Subordinated Indenture and
the form of the Guarantee Agreement attached thereto as Exhibits 4.1, 4.2, 4.3
and 4.12, respectively, and such certificates, statements and results of
inquiries of public officials and officers and representatives of the Company
and such other documents, corporate records, certificates and instruments as we
have deemed necessary or appropriate to enable us to render the opinions
expressed herein. We have assumed the genuineness of all signatures on all
documents examined by us, the legal competence and capacity of each person that
executed documents, the authenticity of documents submitted to us as originals,
and the conformity to authentic originals of documents submitted to us as
certified copies or photocopies.
We also have assumed that: (1) at the time of execution, authentication,
issuance and delivery of the Senior Debt Securities, the Senior Indenture will
be the valid and legally binding obligation of the Senior Indenture Trustee; (2)
at the time of execution, authentication, issuance and delivery of the
Subordinated Debt Securities, the Subordinated Indenture will be the valid and
legally binding obligation of the Subordinated Indenture Trustee; (3) at the
time of execution, authentication, issuance and delivery of the Junior
Subordinated Debt Securities, the Junior Subordinated Indenture will be the
valid and legally binding obligation of the Junior Subordinated Indenture
Trustee; (4) at the time of execution, issuance and delivery of the Receipts,
the Deposit Agreement will be the valid and legally binding obligation of the
Depositary Agent; and (5) at the time of the execution, issuance and delivery of
the Purchase Contracts, the Purchase Contract Agreement will be the valid and
legally binding obligation of the Purchase Contract Agent; (6) at the time of
the execution, issuance and delivery of the Guarantees, the Guarantee Agreement
will be the valid and legally binding obligation of the Guarantee Trustee; (7)
at the time of the execution, countersignature, issuance and delivery of any
Securities Warrants, the related Warrant Agreement will be the valid and legally
binding obligation of each Counterparty thereto; and (8) at the time of the
execution, countersignature, issuance and delivery of the Units, the related
Unit Agreement will be the valid and legally binding obligation of the Unit
Agent.
We have assumed further that: (1) at the time of execution, authentication,
issuance and delivery of the Senior Debt Securities, the Senior Indenture will
continue to be in full force and effect and will not have been terminated or
rescinded by the Company or the Senior Indenture Trustee; (2) at the time of
execution, authentication, issuance and delivery of the Subordinated Debt
Securities, the Subordinated Indenture will have been duly authorized, executed
and delivered by the Company and the Subordinated Indenture Trustee; (3) at the
time of execution, authentication, issuance and delivery of the Junior
Subordinated Debt Securities, the Junior Subordinated Indenture will continue to
be in full force and effect and will not have been terminated or rescinded by
the Company or the Junior Subordinated Indenture Trustee; (4) at the time of
execution, issuance and delivery of the Purchase Contracts, the Purchase
Contract Agreement will have been duly authorized, executed and delivered by the
Company; (5) at the time of execution, issuance and delivery of the Receipts,
the
Reinsurance Group of America, Incorporated
August 25, 2003
Page 4
Deposit Agreement will have been duly authorized, executed and delivered by the
Company and the Depositary Agent; (6) at the time of execution,
countersignature, issuance and delivery of any Securities Warrants, the related
Warrant Agreement will have been duly authorized, executed and delivered by the
Company; (7) at the time of execution, issuance and delivery of the Guarantee,
the Guarantee Agreement will have been duly authorized, executed and delivered
by the Company; (8) at the time of execution, issuance and delivery of the
Units, the Unit Agreement will have been duly authorized, executed and delivered
by the Company; and (9) at the time of the issuance and sale of any of the
Securities, the terms of the Securities, and their issuance and sale, will have
been established so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company.
Based upon the foregoing, in reliance thereon and subject to the exceptions,
qualifications and limitations stated herein and the effectiveness of the
Registration Statement under the Act, we are of the opinion that:
1. With respect to the Receipts, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
the related Preferred Stock, (b) due filing of Articles of Amendment to the
Articles of Incorporation of the Company authorizing and establishing the terms
of the Preferred Stock, (c) terms of the Depositary Shares and of their issuance
and sale have been duly established in conformity with the terms of a valid and
legally binding Deposit Agreement conforming to the description thereof in the
Prospectus, (d) due issuance and delivery of the related Preferred Stock, upon
payment of the consideration therefor provided in the applicable definitive
purchase, underwriting or similar agreement approved by the Board of Directors
of the Company, or a duly constituted committee thereof (collectively, the
"Board"), and (e) due issuance and delivery of Receipts evidencing the
Depositary Shares against the deposit of the Preferred Stock in accordance with
the Deposit Agreement, such Receipts will be validly issued and will entitle the
holders thereof to the rights specified in the Deposit Agreement.
2. With respect to the Debt Securities, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
any Debt Securities, the terms of the offering thereof and related matters and
(b) due execution, authentication, issuance and delivery of such Debt
Securities, upon payment of the consideration therefor provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board and otherwise in accordance with the provisions of the applicable
Indenture, such Debt Securities will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
3. With respect to the Guarantees, assuming the (a) taking of all
necessary corporate action to authorize and approve the issuance and terms of
the Guarantees, the terms of the offering thereof and related matters and (b)
due execution, issuance and delivery of the
Reinsurance Group of America, Incorporated
August 25, 2003
Page 5
Guarantees upon payment of the consideration thereof provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board and otherwise in accordance with the provisions of the applicable
Guarantee Agreement, such Guarantees will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
4. With respect to the Purchase Contracts, assuming the (a) taking of
all necessary corporate action to authorize and approve the issuance and terms
of the Purchase Contracts, the terms of the offering thereof and related matters
and (b) due execution, issuance and delivery of the Purchase Contracts, upon
payment of the consideration for such Purchase Contracts provided for in the
applicable definitive purchase, underwriting or similar agreement approved by
the Board and otherwise in accordance with the provisions of the applicable
Purchase Contract Agreement, the Purchase Contracts will constitute valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their terms.
5. With respect to the Securities Warrants, assuming the (a) taking of
all necessary corporate action to authorize and approve the issuance and terms
of the Securities Warrants, the terms of the offering thereof and related
matters and (b) due execution, countersignature, issuance and delivery of such
Securities Warrants, upon payment of the consideration for such Securities
Warrants provided for in the applicable definitive purchase, underwriting or
similar agreement approved by the Board and otherwise in accordance with the
provisions of the applicable Warrant Agreement, such Securities Warrants will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms.
6. With respect to the Units, assuming the (a) taking of all necessary
corporate action to authorize and approve the issuance, and terms of the Units
and to authorize and approve the issuance of the Securities which are components
of the Units, the terms of the offering thereof and related matters, (b) taking
by the third parties of all necessary corporate or other action to authorize and
approve the issuance and terms of any Third Party Debt Securities which are
components of the Units the terms of the offering thereof and related matters
and (c) due execution, countersignature (where applicable), authentication,
issuance and delivery of the Units, the Securities, that are components of such
Units, and such Third Party Debt Securities, in each case upon the payment of
the consideration therefor provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board, and otherwise in
accordance with the provisions of the applicable (i) Deposit Agreement, in the
case of Depositary Shares or Receipts, (ii) Warrant Agreement, in the case of
Securities Warrants, (iii) Guarantee Agreement, in the case of the Guarantees,
(iv) Purchase Contract Agreement, in the case of Purchase Contracts, (v)
Indenture, in the case of Debt Securities, (vi) Certificate of Trust and Trust
Agreement, in the case of Trust Preferred Securities, and (vii) indenture or
other authorizing document, in the case of Third Party Debt Securities, such
Units will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
Reinsurance Group of America, Incorporated
August 25, 2003
Page 6
In addition to the limitations set forth above, the opinions set forth herein
are further limited by, subject to and based upon the following:
(a) Our opinions expressed above are subject to and limited by the
effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
receivership, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (ii) general equitable
principles, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or other equitable remedies, regardless
of whether enforceability is considered in a proceeding in equity or at law,
(iii) requirements that a claim with respect to any Debt Securities or
Guarantees denominated other than in United States dollars (or a judgment
denominated other than in United States dollars with respect to such a claim) be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law, and (iv) governmental authority to limit,
delay or prohibit the making of payments outside the United States or in foreign
currency or composite currency.
(b) Our opinions expressed above are limited to the laws of the State
of New York and the federal laws of the United States of America. The opinions
expressed herein are based upon the law in effect (and published or otherwise
generally available) on the date hereof, and we assume no obligation to revise
or supplement these opinions should such law be changed by legislative action,
judicial decision or otherwise. In rendering our opinions, we have not
considered, and hereby disclaim any opinion as to, the application or impact of
any laws, decisions, rules or regulations of any other jurisdiction, court or
administrative agency.
(c) You have informed us that you intend to issue the Securities from
time to time on a delayed or continuous basis, and this opinion is limited to
the laws, including the rules and regulations, as in effect on the date hereof.
We understand that prior to issuing any Securities you will afford us an
opportunity to review the operative documents pursuant to which such Securities
are to be issued (including the applicable prospectus supplement) and will file
such supplement or amendment to this opinion (if any) as we may reasonably
consider necessary or appropriate by reason of the terms of such Securities.
(d) We call your attention to the fact that John C. Danforth, a partner
of Bryan Cave LLP, is on the Board of Directors of MetLife, Inc. ("MetLife"),
the majority shareholder of the Company. This opinion does not take into account
any matters that may come to the attention of John C. Danforth in his capacity
as a director of MetLife.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Prospectus. We also consent to your filing copies of this
opinion as an exhibit to the Registration Statement with agencies of such states
as you deem necessary in the course of complying with the laws of such states
regarding the offering and sale of the Securities. In giving such consent, we do
not thereby concede that we are within the
Reinsurance Group of America, Incorporated
August 25, 2003
Page 7
category of persons whose consent is required under Section 7 of the Act or the
Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Bryan Cave LLP
.
.
.
EXHIBIT 12.1
REINSURANCE GROUP OF AMERICA, INCORPORATED
Ratio of Earnings to Fixed Charges
FOR THE SIX
MONTHS ENDED
FOR THE YEARS ENDED DECEMBER 31, JUNE 30,
------------------------------------------------------- --------------
1998 1999 2000 2001 2002 2003
------ ------ ------- ------- ------- --------------
Income from continuing operations
before income taxes.................. $138.8 $ 92.1 $175.0 $ 66.2 $194.0 $116.9
Minority interest in earnings
(losses) of consolidated
subsidiaries included in income
from continuing operations before
income taxes......................... (0.7) 1.0 0.3 - - -
Fixed charges:
Interest expensed and capitalized.... 8.8 11.0 17.6 18.1 35.5 18.0
One-third of rentals................. 0.9 1.4 2.0 1.8 2.2 1.2
------ ----- ------ ----- ------ -----
Total fixed charges................ 9.7 12.4 19.6 19.9 37.7 19.2
Interest credited under
reinsurance contracts.............. 153.2 153.1 104.8 111.7 126.7 84.7
------ ----- ------ ----- ------ -----
Total fixed charges including
interest credited under
reinsurance contracts............ $162.9 $165.5 $124.4 $131.6 $164.4 $103.9
Less interest capitalized, net of
amortization....................... - - - - - -
------ ----- ------ ----- ------ -----
Income from continuing operations
before income taxes and
minority interest plus
total fixed charges.................. $147.8 $105.5 $194.9 $ 86.1 $231.7 $136.1
====== ====== ====== ===== ====== =====
Income from continuing operations
before income taxes and
minority interest plus total
fixed charges including interest
credited under reinsurance
contracts............................ $301.0 $258.6 $299.7 $197.8 $358.4 $220.8
====== ====== ====== ===== ====== =====
Ratio of earnings to fixed charges....... 15.2 8.5 9.9 4.3 6.1 7.1
====== ====== ====== ===== ====== =====
Ratio of earnings to fixed charges
including interest credited under
reinsurance contracts................ 1.8 1.6 2.4 1.5 2.2 2.1
====== ====== ====== ===== ====== =====
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
Board of Directors and Stockholders
Reinsurance Group of America, Incorporated:
We consent to the incorporation by reference in this Registration Statement
of Reinsurance Group of America, Incorporated and subsidiaries on Form S-3 of
our report dated February 3, 2003 (August 13, 2003 as to Note 17 and Schedules
III and IV) appearing in the Current Report on Form 8-K of Reinsurance Group of
America, Incorporated and subsidiaries dated August 25, 2003, and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ DELOITTE & TOUCHE, LLP
St. Louis, Missouri
August 25, 2003
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
REINSURANCE GROUP OF AMERICA, INCORPORATED
(Exact name of obligor as specified in its charter)
Missouri 46-1627032
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (Zip code)
----------
Senior Debt Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Name Address
--------------------------------------- -----------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 21st day of August, 2003.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
---------------------
Name: VAN K. BROWN
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2003,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 4,257,371
Interest-bearing balances .................................... 6,048,782
Securities:
Held-to-maturity securities .................................. 373,479
Available-for-sale securities ................................ 18,918,169
Federal funds sold in domestic offices .......................... 6,689,000
Securities purchased under agreements to
resell ....................................................... 5,293,789
Loans and lease financing receivables:
Loans and leases held for sale ............................... 616,186
Loans and leases, net of unearned
income ..................................................... 38,342,282
LESS: Allowance for loan and
lease losses ............................................... 819,982
Loans and leases, net of unearned
income and allowance ....................................... 37,522,300
Trading Assets .................................................. 5,741,193
Premises and fixed assets (including capitalized
leases) ...................................................... 958,273
Other real estate owned ......................................... 441
Investments in unconsolidated subsidiaries and
associated companies ......................................... 257,626
Customers' liability to this bank on acceptances
outstanding .................................................. 159,995
Intangible assets
Goodwill ..................................................... 2,554,921
Other intangible assets ...................................... 805,938
Other assets .................................................... 6,285,971
------------
Total assets .................................................... $ 96,483,434
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 37,264,787
Noninterest-bearing .......................................... 15,357,289
Interest-bearing ............................................. 21,907,498
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 28,018,241
Noninterest-bearing .......................................... 1,026,601
Interest-bearing ............................................. 26,991,640
Federal funds purchased in domestic
offices ....................................................... 739,736
Securities sold under agreements to repurchase .................. 465,594
Trading liabilities ............................................. 2,456,565
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 8,994,708
Bank's liability on acceptances executed and
outstanding .................................................. 163,277
Subordinated notes and debentures ............................... 2,400,000
Other liabilities ............................................... 7,446,726
------------
Total liabilities ............................................... $ 87,949,634
============
Minority interest in consolidated
subsidiaries ................................................. 519,472
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 2,056,273
Retained earnings ............................................... 4,694,161
Accumulated other comprehensive income .......................... 128,610
Other equity capital components ................................. 0
Total equity capital ............................................ 8,014,328
------------
Total liabilities minority interest and equity capital .......... $ 96,483,434
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
EXHIBIT 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
REINSURANCE GROUP OF AMERICA, INCORPORATED
(Exact name of obligor as specified in its charter)
Missouri 46-1627032
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (Zip code)
----------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 31st day of July, 2003.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
-------------------------------
Name: VAN K. BROWN
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2003,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 4,257,371
Interest-bearing balances .................................... 6,048,782
Securities:
Held-to-maturity securities .................................. 373,479
Available-for-sale securities ................................ 18,918,169
Federal funds sold in domestic offices .......................... 6,689,000
Securities purchased under agreements to
resell ....................................................... 5,293,789
Loans and lease financing receivables:
Loans and leases held for sale ............................... 616,186
Loans and leases, net of unearned
income ..................................................... 38,342,282
LESS: Allowance for loan and
lease losses ............................................... 819,982
Loans and leases, net of unearned
income and allowance ....................................... 37,522,300
Trading Assets .................................................. 5,741,193
Premises and fixed assets (including capitalized
leases) ...................................................... 958,273
Other real estate owned ......................................... 441
Investments in unconsolidated subsidiaries and
associated companies ......................................... 257,626
Customers' liability to this bank on acceptances
outstanding .................................................. 159,995
Intangible assets
Goodwill ..................................................... 2,554,921
Other intangible assets ...................................... 805,938
Other assets .................................................... 6,285,971
------------
Total assets .................................................... $ 96,483,434
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 37,264,787
Noninterest-bearing .......................................... 15,357,289
Interest-bearing ............................................. 21,907,498
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 28,018,241
Noninterest-bearing .......................................... 1,026,601
Interest-bearing ............................................. 26,991,640
Federal funds purchased in domestic
offices ....................................................... 739,736
Securities sold under agreements to repurchase .................. 465,594
Trading liabilities ............................................. 2,456,565
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 8,994,708
Bank's liability on acceptances executed and
outstanding .................................................. 163,277
Subordinated notes and debentures ............................... 2,400,000
Other liabilities ............................................... 7,446,726
------------
Total liabilities ............................................... $ 87,949,634
============
Minority interest in consolidated
subsidiaries ................................................. 519,472
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 2,056,273
Retained earnings ............................................... 4,694,161
Accumulated other comprehensive income .......................... 128,610
Other equity capital components ................................. 0
Total equity capital ............................................ 8,014,328
------------
Total liabilities minority interest and equity capital .......... $ 96,483,434
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
EXHIBIT 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
REINSURANCE GROUP OF AMERICA, INCORPORATED
(Exact name of obligor as specified in its charter)
Missouri 46-1627032
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (Zip code)
-------------
Guarantee of Preferred Securities of
RGA CAPITAL TRUST III
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street,
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of July, 2003.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
---------------------------------------
Name: VAN K. BROWN
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2003,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 4,257,371
Interest-bearing balances .................................... 6,048,782
Securities:
Held-to-maturity securities .................................. 373,479
Available-for-sale securities ................................ 18,918,169
Federal funds sold in domestic offices .......................... 6,689,000
Securities purchased under agreements to
resell ....................................................... 5,293,789
Loans and lease financing receivables:
Loans and leases held for sale ............................... 616,186
Loans and leases, net of unearned
income ..................................................... 38,342,282
LESS: Allowance for loan and
lease losses ............................................... 819,982
Loans and leases, net of unearned
income and allowance ....................................... 37,522,300
Trading Assets .................................................. 5,741,193
Premises and fixed assets (including capitalized
leases) ...................................................... 958,273
Other real estate owned ......................................... 441
Investments in unconsolidated subsidiaries and
associated companies ......................................... 257,626
Customers' liability to this bank on acceptances
outstanding .................................................. 159,995
Intangible assets
Goodwill ..................................................... 2,554,921
Other intangible assets ...................................... 805,938
Other assets .................................................... 6,285,971
------------
Total assets .................................................... $ 96,483,434
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 37,264,787
Noninterest-bearing .......................................... 15,357,289
Interest-bearing ............................................. 21,907,498
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 28,018,241
Noninterest-bearing .......................................... 1,026,601
Interest-bearing ............................................. 26,991,640
Federal funds purchased in domestic
offices ....................................................... 739,736
Securities sold under agreements to repurchase .................. 465,594
Trading liabilities ............................................. 2,456,565
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 8,994,708
Bank's liability on acceptances executed and
outstanding .................................................. 163,277
Subordinated notes and debentures ............................... 2,400,000
Other liabilities ............................................... 7,446,726
------------
Total liabilities ............................................... $ 87,949,634
============
Minority interest in consolidated
subsidiaries ................................................. 519,472
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 2,056,273
Retained earnings ............................................... 4,694,161
Accumulated other comprehensive income .......................... 128,610
Other equity capital components ................................. 0
Total equity capital ............................................ 8,014,328
------------
Total liabilities minority interest and equity capital .......... $ 96,483,434
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
EXHIBIT 25.5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
REINSURANCE GROUP OF AMERICA, INCORPORATED
(Exact name of obligor as specified in its charter)
Missouri 46-1627032
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (Zip code)
-------------
Guarantee of Preferred Securities of
RGA CAPITAL TRUST IV
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street,
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of July, 2003.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
---------------------------------------
Name: VAN K. BROWN
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2003,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 4,257,371
Interest-bearing balances .................................... 6,048,782
Securities:
Held-to-maturity securities .................................. 373,479
Available-for-sale securities ................................ 18,918,169
Federal funds sold in domestic offices .......................... 6,689,000
Securities purchased under agreements to
resell ....................................................... 5,293,789
Loans and lease financing receivables:
Loans and leases held for sale ............................... 616,186
Loans and leases, net of unearned
income ..................................................... 38,342,282
LESS: Allowance for loan and
lease losses ............................................... 819,982
Loans and leases, net of unearned
income and allowance ....................................... 37,522,300
Trading Assets .................................................. 5,741,193
Premises and fixed assets (including capitalized
leases) ...................................................... 958,273
Other real estate owned ......................................... 441
Investments in unconsolidated subsidiaries and
associated companies ......................................... 257,626
Customers' liability to this bank on acceptances
outstanding .................................................. 159,995
Intangible assets
Goodwill ..................................................... 2,554,921
Other intangible assets ...................................... 805,938
Other assets .................................................... 6,285,971
------------
Total assets .................................................... $ 96,483,434
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 37,264,787
Noninterest-bearing .......................................... 15,357,289
Interest-bearing ............................................. 21,907,498
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 28,018,241
Noninterest-bearing .......................................... 1,026,601
Interest-bearing ............................................. 26,991,640
Federal funds purchased in domestic
offices ....................................................... 739,736
Securities sold under agreements to repurchase .................. 465,594
Trading liabilities ............................................. 2,456,565
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 8,994,708
Bank's liability on acceptances executed and
outstanding .................................................. 163,277
Subordinated notes and debentures ............................... 2,400,000
Other liabilities ............................................... 7,446,726
------------
Total liabilities ............................................... $ 87,949,634
============
Minority interest in consolidated
subsidiaries ................................................. 519,472
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 2,056,273
Retained earnings ............................................... 4,694,161
Accumulated other comprehensive income .......................... 128,610
Other equity capital components ................................. 0
Total equity capital ............................................ 8,014,328
------------
Total liabilities minority interest and equity capital .......... $ 96,483,434
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
EXHIBIT 25.6
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
RGA CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (Zip code)
-------------
Preferred Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street,
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of July, 2003.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
---------------------------------------
Name: VAN K. BROWN
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2003,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 4,257,371
Interest-bearing balances .................................... 6,048,782
Securities:
Held-to-maturity securities .................................. 373,479
Available-for-sale securities ................................ 18,918,169
Federal funds sold in domestic offices .......................... 6,689,000
Securities purchased under agreements to
resell ....................................................... 5,293,789
Loans and lease financing receivables:
Loans and leases held for sale ............................... 616,186
Loans and leases, net of unearned
income ..................................................... 38,342,282
LESS: Allowance for loan and
lease losses ............................................... 819,982
Loans and leases, net of unearned
income and allowance ....................................... 37,522,300
Trading Assets .................................................. 5,741,193
Premises and fixed assets (including capitalized
leases) ...................................................... 958,273
Other real estate owned ......................................... 441
Investments in unconsolidated subsidiaries and
associated companies ......................................... 257,626
Customers' liability to this bank on acceptances
outstanding .................................................. 159,995
Intangible assets
Goodwill ..................................................... 2,554,921
Other intangible assets ...................................... 805,938
Other assets .................................................... 6,285,971
------------
Total assets .................................................... $ 96,483,434
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 37,264,787
Noninterest-bearing .......................................... 15,357,289
Interest-bearing ............................................. 21,907,498
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 28,018,241
Noninterest-bearing .......................................... 1,026,601
Interest-bearing ............................................. 26,991,640
Federal funds purchased in domestic
offices ....................................................... 739,736
Securities sold under agreements to repurchase .................. 465,594
Trading liabilities ............................................. 2,456,565
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 8,994,708
Bank's liability on acceptances executed and
outstanding .................................................. 163,277
Subordinated notes and debentures ............................... 2,400,000
Other liabilities ............................................... 7,446,726
------------
Total liabilities ............................................... $ 87,949,634
============
Minority interest in consolidated
subsidiaries ................................................. 519,472
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 2,056,273
Retained earnings ............................................... 4,694,161
Accumulated other comprehensive income .......................... 128,610
Other equity capital components ................................. 0
Total equity capital ............................................ 8,014,328
------------
Total liabilities minority interest and equity capital .......... $ 96,483,434
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
EXHIBIT 25.7
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
RGA CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
Delaware To be applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1370 Timberlake Manor Parkway
Chesterfield, Missouri 63017-6039
(Address of principal executive offices) (Zip code)
-------------
Preferred Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street,
New York New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of July, 2003.
THE BANK OF NEW YORK
By: /s/ VAN K. BROWN
---------------------------------------
Name: VAN K. BROWN
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2003,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 4,257,371
Interest-bearing balances .................................... 6,048,782
Securities:
Held-to-maturity securities .................................. 373,479
Available-for-sale securities ................................ 18,918,169
Federal funds sold in domestic offices .......................... 6,689,000
Securities purchased under agreements to
resell ....................................................... 5,293,789
Loans and lease financing receivables:
Loans and leases held for sale ............................... 616,186
Loans and leases, net of unearned
income ..................................................... 38,342,282
LESS: Allowance for loan and
lease losses ............................................... 819,982
Loans and leases, net of unearned
income and allowance ....................................... 37,522,300
Trading Assets .................................................. 5,741,193
Premises and fixed assets (including capitalized
leases) ...................................................... 958,273
Other real estate owned ......................................... 441
Investments in unconsolidated subsidiaries and
associated companies ......................................... 257,626
Customers' liability to this bank on acceptances
outstanding .................................................. 159,995
Intangible assets
Goodwill ..................................................... 2,554,921
Other intangible assets ...................................... 805,938
Other assets .................................................... 6,285,971
------------
Total assets .................................................... $ 96,483,434
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 37,264,787
Noninterest-bearing .......................................... 15,357,289
Interest-bearing ............................................. 21,907,498
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 28,018,241
Noninterest-bearing .......................................... 1,026,601
Interest-bearing ............................................. 26,991,640
Federal funds purchased in domestic
offices ....................................................... 739,736
Securities sold under agreements to repurchase .................. 465,594
Trading liabilities ............................................. 2,456,565
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 8,994,708
Bank's liability on acceptances executed and
outstanding .................................................. 163,277
Subordinated notes and debentures ............................... 2,400,000
Other liabilities ............................................... 7,446,726
------------
Total liabilities ............................................... $ 87,949,634
============
Minority interest in consolidated
subsidiaries ................................................. 519,472
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 2,056,273
Retained earnings ............................................... 4,694,161
Accumulated other comprehensive income .......................... 128,610
Other equity capital components ................................. 0
Total equity capital ............................................ 8,014,328
------------
Total liabilities minority interest and equity capital .......... $ 96,483,434
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
