EXHIBIT 4.2
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY,
Issuer
And
U.S. BANK NATIONAL ASSOCIATION,
Trustee
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AMENDED AND RESTATED INDENTURE
Dated as of April 22, 2004
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Subordinated Debt Securities
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms............................................................................1
"Affiliate"..................................................................................................1
"American Equity Trust"......................................................................................1
"Authenticating Agent".......................................................................................1
"Bankruptcy Law".............................................................................................2
"Board of Directors".........................................................................................2
"Board Resolution"............................................................................................
"Business Day"...............................................................................................2
"Certificate"................................................................................................2
"Company"....................................................................................................2
"Commission".................................................................................................2
"Common Securities"..........................................................................................2
"Common Securities Guarantee"................................................................................2
"Corporate Trust Office".....................................................................................2
"Custodian"..................................................................................................2
"Declaration,"...............................................................................................2
"Default"....................................................................................................2
"Deferral Period,"...........................................................................................3
"Depositary".................................................................................................3
"Event of Default"...........................................................................................3
"Global Security"............................................................................................3
"Governmental Obligations"...................................................................................3
"herein," "hereof" and "hereunder,"..........................................................................3
"Indebtedness"...............................................................................................3
"Indenture"..................................................................................................4
"Interest Payment Date,".....................................................................................4
"Investment Company Act".....................................................................................4
"Officers' Certificate"......................................................................................4
"Opinion of Counsel".........................................................................................4
"Original Issue Discount Security"...........................................................................4
"Outstanding,"...............................................................................................4
"Paying Agent"...............................................................................................5
"Person".....................................................................................................5
"Place of Payment,"..........................................................................................5
"Predecessor Security".......................................................................................5
"Preferred Securities".......................................................................................5
"Preferred Securities Guarantee".............................................................................5
"Property Trustee"...........................................................................................5
"Redemption Date,"...........................................................................................5
"Redemption Price,"..........................................................................................6
"Responsible Officer,".......................................................................................6
"Securities".................................................................................................6
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"Securities Act".............................................................................................6
"Securityholder," "holder of Securities," "registered holder,"...............................................6
"Senior Indebtedness"........................................................................................6
"Stated Maturity,"...........................................................................................6
"Subsidiary".................................................................................................7
"Trustee"....................................................................................................7
"Trust
Indenture Act"........................................................................................7
"Trust Securities"...........................................................................................7
"Voting Stock,"..............................................................................................7
"Yield to Maturity"..........................................................................................7
ARTICLE II
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities....................................................7
SECTION 2.02 Form of Securities and Trustee's Certificate..........................................10
SECTION 2.03 Denominations; Provisions for Payment.................................................10
SECTION 2.04 Execution and Authentications.........................................................11
SECTION 2.05 Registration of Transfer and Exchange.................................................12
SECTION 2.06 Temporary Securities..................................................................13
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.......................................13
SECTION 2.08 Cancellation..........................................................................14
SECTION 2.09 Benefits of
Indenture.................................................................14
SECTION 2.10 Authenticating Agent..................................................................14
SECTION 2.11 Global Securities.....................................................................15
SECTION 2.12 CUSIP Numbers.........................................................................16
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption............................................................................16
SECTION 3.02 Notice of Redemption..................................................................16
SECTION 3.03 Payment Upon Redemption...............................................................17
SECTION 3.04 Sinking Fund..........................................................................18
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.................................18
SECTION 3.06 Redemption of Securities for Sinking Fund.............................................18
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest............................................19
SECTION 4.02 Maintenance of Office or Agency.......................................................20
SECTION 4.03 Paying Agents.........................................................................20
SECTION 4.04 Statement by Officers as to Default...................................................22
SECTION 4.05 Existence.............................................................................22
SECTION 4.06 Payment of Taxes......................................................................22
SECTION 4.07 Waiver of Certain Covenants...........................................................22
SECTION 4.08 Appointment to Fill Vacancy in Office of Trustee......................................22
SECTION 4.09 Compliance with Consolidation Provisions..............................................23
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.....................23
SECTION 5.02 Preservation Of Information; Communications With Securityholders......................23
SECTION 5.03 Reports by the Company................................................................23
SECTION 5.04 Reports by the Trustee................................................................24
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.....................................................................24
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.......................27
SECTION 6.03 Application of Moneys Collected.......................................................28
SECTION 6.04 Limitation on Suits...................................................................28
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver..........................29
SECTION 6.06 Control by Securityholders............................................................29
SECTION 6.07 Undertaking to Pay Costs..............................................................30
SECTION 6.08 Waiver of Past Defaults...............................................................30
SECTION 6.09 Trustee to Give Notice of Default.......................................................
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee........................................31
SECTION 7.02 Certain Rights of Trustee.............................................................32
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or Securities........................33
SECTION 7.04 May Hold Securities...................................................................33
SECTION 7.05 Moneys Held in Trust..................................................................33
SECTION 7.06 Compensation and Reimbursement........................................................33
SECTION 7.07 Reliance on Officers' Certificate.....................................................34
SECTION 7.08 Disqualification; Conflicting Interests...............................................34
SECTION 7.09 Corporate Trustee Required; Eligibility...............................................34
SECTION 7.10 Resignation and Removal; Appointment of Successor.....................................34
SECTION 7.11 Acceptance of Appointment By Successor................................................36
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business...........................37
SECTION 7.13 Preferential Collection of Claims Against the Company.................................37
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.................................................37
SECTION 8.02 Proof of Execution by Securityholders.................................................38
SECTION 8.03 Who May be Deemed Owners..............................................................38
SECTION 8.04 Certain Securities Owned by Company Disregarded.......................................38
SECTION 8.05 Actions Binding on Future Securityholders.............................................38
ARTICLE IX
SUPPLEMENTAL
INDENTURES
SECTION 9.01 Supplemental
Indentures Without the Consent of Securityholders........................39
SECTION 9.02 Supplemental
Indentures With Consent of Securityholders...............................40
SECTION 9.03 Effect of Supplemental
Indentures.......................................................
SECTION 9.04 Securities Affected by Supplemental
Indentures........................................41
SECTION 9.05 Execution of Supplemental
Indentures..................................................41
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ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc..........................................42
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture...............................................43
SECTION 11.02 Deposited Moneys and Governmental Obligations to be Held in Trust.....................43
SECTION 11.03 Payment of Moneys Held by Paying Agents...............................................43
SECTION 11.04 Repayment to Company..................................................................43
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse...........................................................................44
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or Covenant Defeasance..........................44
SECTION 13.02 Defeasance and Discharge..............................................................44
SECTION 13.03 Covenant Defeasance...................................................................45
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance.......................................45
SECTION 13.05 Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous
Provisions............................................................................47
SECTION 13.06 Reinstatement.........................................................................47
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns......................................................47
SECTION 14.02 Actions by Successor..................................................................48
SECTION 14.03 Notices...............................................................................48
SECTION 14.04 Governing Law.........................................................................48
SECTION 14.05 Treatment of Securities as Debt.......................................................48
SECTION 14.06 Compliance Certificates and Opinions..................................................48
SECTION 14.07 Payments on Business Days.............................................................49
SECTION 14.08 Conflict with Trust Indenture Act.....................................................49
SECTION 14.09 Counterparts..........................................................................49
SECTION 14.10 Separability..........................................................................49
SECTION 14.11 Assignment............................................................................49
SECTION 14.12 Acknowledgment of Rights..............................................................50
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate..............................................................50
SECTION 15.02 Default on Senior Indebtedness or Under this Indenture................................50
SECTION 15.03 Liquidation; Dissolution; Bankruptcy..................................................51
SECTION 15.04 Subrogation...........................................................................52
SECTION 15.05 Trustee to Effectuate Subordination...................................................52
SECTION 15.06 Notice by the Company.................................................................53
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness.................................53
SECTION 15.08 Subordination May Not Be Impaired.....................................................54
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Section of
Trust Indenture Act of Section of
1939, as amended Indenture
------------------------------- -----------------------
310(a) .............................................................. Inapplicable
310(b) .............................................................. 7.08
310(c) .............................................................. Inapplicable
311(a) .............................................................. 7.13
311(b) .............................................................. 7.13
311(c) .............................................................. Inapplicable
312(b) .............................................................. 5.02(c)
312(c) .............................................................. Inapplicable
313(a) .............................................................. 5.04(a)
313(b) .............................................................. 5.04(b)
313(c) .............................................................. 5.04(b)
313(d) .............................................................. Inapplicable
314(a) .............................................................. Inapplicable
314(b) .............................................................. Inapplicable
314(c) .............................................................. Inapplicable
314(d) .............................................................. Inapplicable
314(e) .............................................................. Inapplicable
314(f) .............................................................. Inapplicable
315(a) .............................................................. Inapplicable
315(b) .............................................................. Inapplicable
315(c) .............................................................. Inapplicable
315(d) .............................................................. Inapplicable
315(e) .............................................................. Inapplicable
316(a) .............................................................. Inapplicable
316(b) .............................................................. Inapplicable
316(c) .............................................................. Inapplicable
317(a) .............................................................. Inapplicable
317(b) .............................................................. Inapplicable
318(a) .............................................................. Inapplicable
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1 This Cross-Reference Table does not constitute part of the Indenture
and shall not have any bearing on the interpretation of any of its
terms or provisions.
i
This AMENDED AND RESTATED INDENTURE, dated as of April 22, 2004, between
American Equity Investment Life Holding Company, an Iowa corporation (the
"Company"), and U.S. Bank National Association, a nationally chartered
banking association, as trustee (the "Trustee"), amends and restates the
Indenture dated as of March 15, 2004, between the Company and the Trustee:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of
unsecured subordinated debt securities, debentures, notes, bonds, or other
evidences of indebtedness (hereinafter referred to as the "Securities"), in an
unlimited aggregate principal amount to be issued from time to time in one or
more series, as provided in this Indenture, including, without limitation,
Securities to be issued and sold from time to time to one or more American
Equity Trusts (as defined herein);
WHEREAS, the Company and the Trustee entered into the Indenture as of
March 15, 2004;
WHEREAS, the Company and the Trustee have agreed that the Indenture should
be amended and restated in the form hereof; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are defined
in the Trust Indenture Act of 1939, as amended, or that are by reference in such
Act defined in the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this instrument.
"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. When used with respect to any Person,
"control" means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" and "under common control with" have meaning
correlative to the foregoing.
"American Equity Trust" means each of American Equity Capital Trust V
and American Equity Capital Trust VI (together, the "Trusts"), each a statutory
business trust formed under the laws of the State of Delaware, or any other
similar trust created for the purpose of issuing preferred securities in
connection with the issuance of Securities under this Indenture.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Securities appointed with respect to all or any
series of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state bankruptcy, insolvency, reorganization or other law for the relief of
debtors.
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee of such Board.
"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.
"Business Day" means, with respect to any series of Securities, any
day other than a day on which federal or state banking institutions in the
Borough of Manhattan, The City of
New York, are authorized or obligated by law,
executive order or regulation to close.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
14.06.
"Company" means
American Equity Investment Life Holding Company, a
corporation duly organized and existing under the laws of the State of Iowa,
and, subject to the provisions of Article X, shall also include its successors
and assigns.
"Commission" means the Securities and Exchange Commission, from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Common Securities" means undivided beneficial interests in the assets
of an American Equity Trust which rank pari passu with Preferred Securities
issued by such American Equity Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of Preferred Securities.
"Common Securities Guarantee" means any guarantee agreement executed
by the Company with respect to the Common Securities issued by an American
Equity Trust pursuant to which the Company agrees to pay the guarantee payments
under any such guarantee agreement to the holders of such Common Securities.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at U.S. Bank National
Association, 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000-0000, Facsimile
000-000-0000, Attention: Xxxxx Xxxxxx.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Declaration," with respect to an American Equity Trust, means the
Amended and Restated Declaration of Trust of such American Equity Trust.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
2
"Deferral Period," with respect to any series of Securities, means any
period during which the Company elects to extend the interest payment period on
such series of Securities pursuant to Section 4.01(b); provided that a Deferral
Period (or any extension thereof) may not extend beyond the Stated Maturity or
the Redemption Date of any Security of such series and must end on an Interest
Payment Date or, if the Securities are redeemed, on an Interest Payment Date or
the Redemption Date for such Securities.
"Depositary" means, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company,
New York,
New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or Section
2.11.
"Event of Default" means, with respect to Securities of a particular
series any event specified in Section 6.01, continued for the period of time, if
any, therein designated.
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"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.
"Indebtedness" of any person means the principal of and premium, if
any, and interest due on indebtedness of such Person, whether outstanding on the
date of this Indenture or thereafter created, incurred or assumed, which is (a)
indebtedness for money borrowed, and (b) any amendments, renewals, extensions,
modifications and refundings of any such indebtedness. For the purposes of this
definition, "indebtedness for money borrowed" means (i) any obligation of, or
any obligation guaranteed by, such Person for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) any obligation of, or any such obligation guaranteed by, such
Person evidenced by bonds, debentures, notes or similar written instruments,
including obligations assumed or incurred in connection with the acquisition of
property, assets or businesses (provided, however, that the deferred purchase
price of any other business or property or assets shall not be considered
Indebtedness if the purchase price thereof is payable in full within 90 days
from the date on which such indebtedness was created), and (iii) any obligations
of such Person as lessee under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting
3
principles and leases of property or assets made as part of any sale and
lease-back transaction to which such Person is a party.
"Indenture" means this instrument as originally executed and 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 2.01.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on a Security of a particular
series.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Officers' Certificate" means a certificate signed by the Chief
Financial Officer, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall include
the statements provided for in Section 14.06, if and to the extent required by
the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 14.06, if and to the extent required by the
provisions thereof.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section
6.01(b).
"Outstanding," when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any particular time, all
Securities of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore canceled by the Trustee
or any Paying Agent, or delivered to the Trustee or any Paying Agent for
cancellation or that have previously been canceled; (b) Securities or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; (c)
Securities in lieu of or in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.07; (d)
Securities as to which Defeasance (as defined in Section 13.02) has been
effected pursuant to Section 13.02; and (e) Securities as to which Covenant
Defeasance (as defined in Section 13.03) has been effected pursuant to Section
13.03, but only with respect to any direction, waiver, consent, declaration or
other act of holders (and the consequences thereof) in connection with Article
X, Section 4.06 and any covenants provided pursuant to Sections 2.01(15),
9.01(3) or 9.01(6) for the benefit of the holders of the Securities, but shall
continue to be deemed "Outstanding" for all other purposes hereunder; provided,
however, that in determining whether the holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
4
hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon
acceleration of the maturity thereof to such date pursuant to Section 6.01(b),
(B) if, as of such date, the principal amount payable at the Stated Maturity of
a Security is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined
as contemplated by Section 2.01, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 2.01, of the
principal amount of such Security (or, in the case of a Security described in
Clause (A) or (B) above, of the amount determined as provided in such Clause),
and (D) Securities beneficially owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which a Responsible Officer of the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint-
venture, joint-stock company, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 2.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" means undivided beneficial interests in the
assets of an American Equity Trust which rank pari passu with Common Securities
issued by such American Equity Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee agreement
executed by the Company with respect to the Preferred Securities issued by an
American Equity Trust pursuant to which the Company agrees to pay the guarantee
payments under any such guarantee agreement to the holders of such Preferred
Securities.
"Property Trustee" has the meaning set forth in the Declaration of the
applicable American Equity Trust.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
5
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the Chairman of the Board of Directors, the President, any Vice-President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the preamble of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securityholder," "holder of Securities," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for
that purpose in accordance with the terms of this Indenture.
"Senior Indebtedness" means with respect to the Company, all amounts
due on obligations in connection with any of the following, whether Outstanding
at the date of execution of this Indenture, or thereafter incurred or created,
(i) the principal of or any premium and interest in respect of (A) indebtedness
of the Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company (other than
the Securities); (ii) all capital lease obligations of the Company; (iii) all
obligations of the Company issued or assumed as the deferred purchase price of
property, all conditional sale obligations of the Company and all obligations of
the Company under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of the
Company for the reimbursement on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction; (v) all obligations of
the Company in respect of interest rate swap, cap or other agreements, interest
rate future or options contracts, currency swap arrangements, currency future or
option contracts and other similar agreements; (vi) all obligations of the types
referred to in clauses (i) through (v) above of other persons for the payment of
which the Company is responsible or liable as obligor, guarantor or otherwise;
and (vii) all obligations of the types referred to in clauses (i) through (vi)
above of other persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the Company); provided,
that, "Senior Indebtedness" shall not include: (1) indebtedness or monetary
obligations to trade creditors created or assumed by the Company or any of its
Subsidiaries in the ordinary course of business in connection with the obtaining
of materials or services; (2) indebtedness that is by its terms subordinated to
or ranks equal with the Securities; or (3) any indebtedness of the Company to
its affiliates (including all debt securities and guarantees in respect of those
debt securities, issued to (a) any American Equity Trust or (b) any other trust,
partnership or other entity affiliated with the Company that is a financing
vehicle of the Company (a "financing entity") in connection with the issuance by
such financing entity of preferred securities or other securities guaranteed by
the Company) unless otherwise expressly provided in the terms of any such
indebtedness.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
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"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
"Trustee" means U.S. Bank National Association and, subject to the
provisions of Article VII, shall also include its successors and assigns and, if
at any time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect to
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.
"Trust Securities" means, collectively, Common Securities and
Preferred Securities of an American Equity Trust.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
"Yield to Maturity" means the yield to maturity on a series of
securities calculated at the time of issuance of such series or, if applicable,
of the most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE II
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series up to the aggregate principal amount of Securities of that
series from time to time authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental hereto. Prior to the
initial issuance of Securities of any series, there shall be established in or
pursuant to a Board Resolution of the Company, and set forth in an Officers'
Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);
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(3) the price or prices at which the Company will sell the
Securities;
(4) the Stated Maturity of the Securities;
(5) the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or rates, if
any;
(6) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record date
for the determination of holders to whom interest is payable on any such
Interest Payment Dates;
(7) the right, if any, to extend the interest payment periods
and the duration of any such Deferral Period, including the maximum
consecutive period during which interest payment periods may be extended;
(8) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to any index,
formula, or other method, such as one or more currencies, commodities,
equity indices or other indices, and the manner in which such amounts shall
be determined;
(9) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(10) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(11) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms
and conditions upon which, Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(12) if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(13) if other than the currency of the United States of America,
the currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 1.01;
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(14) provisions, if any, granting special rights to holders of
the Securities upon the occurrence of specific events;
(15) any additions to the Events of Default or the Company's
covenants provided for with respect to the Securities of the series;
(16) if other than by a Board Resolution, the manner in which
any election by the Company to defease the Securities pursuant to Section
13.02 or Section 13.03 shall be evidenced;
(17) whether the Securities will be convertible into other
securities or property of the Company and, if so, the terms and conditions
upon which such Securities will be so convertible, including the conversion
price and the conversion period;
(18) whether the Securities are issuable as a Global Security
and, in such case, the identity for the Depositary for such series and the
terms and conditions upon which Global Securities may be exchanged for
certificated debt securities;
(19) any special tax implications of the Securities of the
series, including any provisions for Original Issue Discount Securities, if
offered;
(20) any trustees, authenticating or Paying Agents, transfer
agents or registrars or other agents with respect to the Securities;
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify
or delete any provision of this Indenture with respect to such series,
provided that no such term may modify or delete any provision hereof if
imposed by the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities of the
Trustee hereunder shall have been consented to in writing by the
Trustee); and
(22) any other terms of the series which may be required by or
advisable under applicable laws or regulations.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by
9
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate of the Company
setting forth the terms of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by which
rates of interest may be determined, with different dates on which such interest
may be payable and with different redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution of the Company and as set forth in an
Officers' Certificate of the Company and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved 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 stock exchange on which Securities of that series
may be listed, or to conform to usage.
SECTION 2.03 Denominations; Provisions for Payment.
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(12). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with respect
to that series. Unless otherwise provided pursuant to Section 2.01, the
principal of and the interest on the Securities of any series, as well as any
premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the
Company maintained for that purpose in the Place of Payment. Each Security shall
be dated the date of its authentication. Interest on the Securities shall be
computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
interest on such Security will be paid upon presentation and surrender of such
Security as provided in Section 3.03.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 2.01, any interest on any Security
that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date for Securities of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such 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
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on each such Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first
class postage prepaid, to each Securityholder at his or her address as it
appears in the Security Register (as hereinafter defined), 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 Securities (or their respective Predecessor Securities)
are registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such 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.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
Subject to the foregoing provisions of this Section, each Security of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its
President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant Secretaries,
under its corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile signature.
The Company may use the facsimile signature of any Person who shall have been a
President or Vice President thereof, or of any Person who shall have been a
Secretary or Assistant Secretary thereof, notwithstanding the fact that at the
time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be the President or a
11
Vice President, or the Secretary or an Assistant Secretary, of the Company. The
seal of the Company may be in the form of a facsimile of such seal and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities. The
Securities may contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication by the Trustee.
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Securities, signed by its
President or any Vice President and its Secretary or any Assistant Secretary,
and the Trustee in accordance with such written order shall authenticate and
deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms of the Securities have been established in conformity with the provisions
of this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose, for
other Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in this Section.
In respect of any Securities so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Security or Securities of the same series that the
Securityholder making the exchange shall be entitled to receive, bearing numbers
not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose, or such other location designated by the
Company a register or registers (herein referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in this
Article provided and which at all reasonable times shall be open for inspection
by the Trustee. The registrar for the purpose of registering Securities and
transfer of Securities as herein provided shall be appointed as authorized by
Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
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All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required
by the Company or the Security Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Security Registrar, duly
executed by the registered holder or by such holder's duly authorized attorney
in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of Section
3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the Outstanding Securities of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Securities of any series or portions thereof called for
redemption. The provisions of this Section 2.05 are, with respect to any Global
Security, subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security of
any series shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities of such series. Without unnecessary delay
the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered
in exchange therefor (without charge to the holders), at the office or agency of
the Company designated for such purpose, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such temporary Securities an
equal aggregate principal amount of definitive Securities of such series, unless
the Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until so
exchanged, the temporary Securities of such series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company in its discretion (subject to the next
succeeding sentence) shall execute, and upon the Company's request the Trustee
(subject as aforesaid) may authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee and any agent
of the Company or the Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them harmless, and, in every
case of destruction, loss or theft, the applicant shall also furnish to the
Company and the Trustee evidence to their satisfaction of the destruction, loss
or theft of the applicant's Security and of the ownership thereof and in the
case of mutilation shall surrender the Security to the Trustee. The Trustee may
authenticate any such substituted Security and deliver the same upon the written
request or authorization of any officer of the Company.
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Upon the issuance of any substituted Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security that has
matured or is about to mature or has been called for redemption in full shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish to the Company and the Trustee and any agent of
the Company or the Trustee such security or indemnity as they may require to
indemnify and defend and to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of (but shall be subject to all of the limitations of rights set forth
in) this Indenture equally and proportionately with any and all other Securities
of the same series duly issued hereunder. All Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer, or for credit against payment in respect
of a sinking or analogous fund, shall, if surrendered to the Company or any
Paying Agent, be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be canceled by it, and no Securities shall be issued in
lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee. In
the absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and their successors and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
their successors and of the holders of the Senior Indebtedness and of the
holders of the Securities.
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent
shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon exchange, transfer or partial redemption thereof, and
Securities so
14
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Securities
by the Trustee shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent for such series. Each Authenticating Agent
shall be acceptable to the Company and shall be a corporation organized and
doing business under the laws of the United States of America or any State that
has a combined capital and surplus, as most recently reported or determined by
it, sufficient under the laws of any jurisdiction under which it is organized or
in which it is doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
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 the Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent with respect to all series of 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 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 Trustee
and to the Company. The Trustee may at any time (and upon request by the Company
shall) terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon acceptance
of its appointment hereunder, shall become vested with all the rights, powers
and duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that the
Securities of a particular series are to be issued as a Global Security, then
the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of all
of the Outstanding Securities of such series issued and not yet cancelled, (ii)
shall be registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Except as otherwise provided in Section 2.11 of the Indenture, this Security
may be transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered as a clearing agency under the Exchange Act or in good standing
under the Exchange Act, or other applicable statute or regulation, and a
successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or
15
becomes aware of such condition, as the case may be, this Section 2.11 shall no
longer be applicable to the Securities of such series and the Company will
execute, and subject to Section 2.05, the Trustee will authenticate and deliver
the Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security and
that the provisions of this Section 2.11 shall no longer apply to the Securities
of such series. In such event the Company will execute and subject to Section
2.05, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. Upon the exchange of the Global Security for such Securities in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so used by the Company, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to holders of
Securities; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such
series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Securities of any series in
accordance with the right reserved so to do, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Securities of
such series to be redeemed by mailing, first class postage prepaid, a notice of
such redemption not less than 30 days and not more than 90 days before the date
fixed for redemption of that series to such holders at their last addresses as
they shall appear upon the Security Register unless a shorter period is
specified in the Securities to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the registered holder receives the notice. In any case, failure
duly to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings
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for the redemption of any other Securities of such series or any other series.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to be
redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company
specified therein upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice, that from and after said date interest will cease to accrue and
that the redemption is for a sinking fund, if such is the case. If less than all
the Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part shall specify the
particular Securities to be so redeemed. In case any Security is to be redeemed
in part only, the notice that relates to such Security shall state the portion
of the principal amount thereof to be redeemed, and shall state that on and
after the redemption date, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed,
the Company shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of Securities of
the series to be redeemed, and thereupon the Trustee shall select, by lot or in
such other manner as it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions (equal to the
minimum authorized denomination for Securities of such series or any integral
multiple thereof) of the principal amount of such Securities of a denomination
larger than the minimum authorized denomination for Securities of such series,
the Securities to be redeemed and shall thereafter promptly notify the Company
in writing of the numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any Paying Agent to call all or any part of the
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such Paying Agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such Paying Agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such Paying Agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
Paying Agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed
as above provided, the Securities or portions of Securities of the series to be
redeemed specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption and interest on such
Securities or portions of Securities shall cease to accrue on and after the date
fixed for redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof and except as provided in Sections 4.03 and 7.05, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities on or after the
date fixed for redemption at the place of payment
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specified in the notice, said Securities shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for redemption
is an interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security of
the same series of authorized denominations in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made is
herein referred to as the "sinking fund payment date." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (ii) may apply as a
credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with
such Officers' Certificate, deliver to the Trustee any Securities to be so
delivered. Failure of the Company, on or before any such 60th day, to deliver
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Company will
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make no optional sinking fund payment with respect to such series as provided in
this Section. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Section 3.03.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. 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 the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article VI hereof and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.08 or the default cured on or before the 60th day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
(a) The Company shall pay or cause to be paid the principal of and
premium, if any, and interest (including interest accruing during any Deferral
Period on the Securities) on or prior to the dates and in the manner provided in
such Securities or pursuant to this Indenture. An installment of principal,
premium, if any, or interest shall be considered paid on the applicable due date
if on such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all of such installment then due. The
interest on the Securities shall be payable only to or upon the written order of
the holders thereof and, at the option of the Company, may be paid by wire
transfer or by mailing checks for such interest payable to or upon the written
order of such holders at their last address as they shall appear upon the
Security Register.
(b) Notwithstanding the provisions of Section 4.01(a) or any other
provision herein to the contrary, the Company shall have the right, as provided
in an Officer's Certificate or Supplemental Indenture issued pursuant to Section
2.01, in its sole and absolute discretion at any time and from time to time
while the Securities of any series are outstanding, so long as no Event of
Default with respect to such series of Securities has occurred and is
continuing, to defer payments of interest by extending the interest payment
period for such series of Securities for the maximum consecutive period, if any,
specified for such series of Securities, provided that such Deferral Period (or
any extension thereof) may not extend beyond the Stated Maturity date or
Redemption Date of any Security of such series, and must end on an Interest
Payment Date or, if the Securities are redeemed, on an Interest Payment Date or
the Redemption Date for such Securities, and provided further that at the end of
each Deferral Period the Company shall pay all interest then accrued and unpaid
(together with interest thereon to the extent permitted by applicable law at the
rate accruing on such Securities). Prior to the termination of a Deferral
Period, the Company may shorten or may further extend the interest payment
period for such series of Securities, provided that such Deferral Period
together with all such previous and further extensions may not exceed
19
the maximum consecutive period specified for such series of Securities, end on a
date other than an Interest Payment Date or extend beyond the Stated Maturity
date or Redemption Date of any Security of such series. The Company shall give
the Trustee written notice of the Company's election to begin a Deferral Period
for any series of Securities and any shortening or extension thereof at least
five Business Days prior to the earlier of (i) the date the interest on such
Securities or distributions on the related Preferred Securities are payable or
(ii) the date the trustees of an American Equity Trust are required to give
notice to holders of Preferred Securities of such American Equity Trust of the
record date or the date such distributions are payable, but in any event not
less than five Business Days prior to such record date. The Company shall give
or cause the Trustee to give notice (a form of which shall be provided by the
Company to the Trustee) of the Company's election to begin a Deferral Period to
the Holders by first class mail, postage prepaid.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the
Company agrees to maintain an office or agency in each Place of Payment, with
respect to each such series and at such other location or locations as may be
designated as provided in this Section 4.02, where (i) Securities of that series
may be presented for payment, (ii) Securities of that series may be presented as
hereinabove authorized for registration of transfer and exchange, and (iii)
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations, as the Company may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more Paying Agents for all or
any series of the Securities, other than the Trustee, the Company will cause
each such Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest on the
Securities of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Securities) 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) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any payment of
the
20
principal of and premium, if any, or interest on the Securities of that
series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) that it will perform all other duties of Paying Agent as
set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with respect to
any series of the Securities, it will on or before each due date of the
principal of, and premium, if any, or interest on Securities of that series, set
aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal, and premium, if any, or interest
so becoming due on Securities of that series until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of such action, or any failure (by it or any other obligor on
such Securities) to take such action. Whenever the Company shall have one or
more Paying Agents for any series of Securities, it will, prior to each due date
of the principal of, and premium, if any, or interest on any Securities of that
series, deposit with the Paying Agent a sum sufficient to pay the principal, and
premium, if any, or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium, if any, or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.04, and (ii) 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 direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms and conditions 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.
(d) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 2.01, any money or
Government Obligations deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company at its option at the request of the Company, or (if
then held by the Company) shall be discharged from such trust; and the holder of
such 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 published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of
New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
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SECTION 4.04 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.05 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 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
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the holders.
SECTION 4.06 Payment of Taxes.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment or governmental charge whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 4.07 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Sections 2.01(15),
9.01(3) or 9.01(6) for the benefit of the holders of such series or in Section
4.06, if before the time for such compliance the holders of at least a majority
in aggregate principal amount of the Outstanding 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 so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 4.08 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
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SECTION 4.09 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article X hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
on a monthly basis not more than 5 days after each regular record date a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company 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, in either case, no such list need be furnished for any series for
which the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Securities contained in the most recent list furnished to it as provided in
Section 5.01 and as to the names and addresses of holders of Securities received
by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Securities.
(d) Every holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of any of them 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 Sections 5.01 and 5.02(c), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 5.02(c).
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to 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) that the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the
23
Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports that may be required pursuant to Section 13 of the Exchange Act, in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from to time
by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit to the
Securityholders such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of this
Section as may be required by the Trust Indenture Act and the rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04 Reports by the Trustee.
(a) On or before July 15 in each year in which any of the Securities
are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon the
Security Register, a brief report dated as of the preceding May 15, if and to
the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Securities are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular
series, "Event of Default" means any one or more of the following events that
has occurred and is continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Securities of that series, as and when the same
shall become due and payable, and continuance of such default for a period
of 30 days; provided, however, that during any Deferral Period for the
Securities of that series, failure to pay interest on the Securities of
that series shall not constitute a default in the payment of interest for
this purpose; and, provided, further, that a valid extension of an interest
payment period by
24
the Company in accordance with the terms of any indenture supplemental
hereto, shall not constitute a default in the payment of interest for this
purpose;
(2) the Company defaults in the payment of the principal of, or
premium, if any, on any of the Securities of that series as and when the
same shall become due and payable whether at maturity, upon redemption,
because of acceleration or otherwise, or in any payment required by any
sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that (i) has been expressly included in this Indenture solely for
the benefit of one or more series of Securities other than such series or
(ii) a default in the performance or breach of which is elsewhere in this
Section specifically dealt with) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have
been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Securities of that series at the time
Outstanding;
(4) an event of default, as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any Indebtedness for money borrowed of the Company
(other than a default under this Indenture with respect to Securities of
any series or a default with respect to any non-recourse Indebtedness),
whether such Indebtedness now exists or shall hereafter be created, shall
happen and shall result in a principal amount in excess of $50,000,000 of
Indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, and such
acceleration shall not have been rescinded or annulled, or such
Indebtedness shall not have been discharged, within a period of 15 days
after there has been given, by registered or certified United States mail,
return receipt requested, to the Company by the Trustee or to the Company
and the Trustee by the holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series a written notice
specifying such event of default and requiring the Company to cause such
acceleration to be rescinded or annulled or to cause such Indebtedness to
be discharged and stating that such notice is a "Notice of Default"
hereunder;
(5) the entry by a court of competent jurisdiction of:
(i) a decree or order for relief in respect of the
Company in an involuntary proceeding under any applicable
Bankruptcy Law and such decree or order shall remain unstayed and
in effect for a period of 120 consecutive days;
(ii) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company and such
decree or order shall remain unstayed and in effect for a period
of 120 consecutive days; or
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(iii) a final and non-appealable order appointing a
Custodian of the Company or of any substantial part of the
property of the Company, or ordering the winding up or
liquidation of the affairs of the Company;
(6) the Company pursuant to or within the meaning of any
Bankruptcy Law: (i) commences a voluntary case or proceeding; (ii) consents
to the entry of an order for relief against it in an involuntary case or
proceeding; (iii) files a petition or answer or consent seeking
reorganization or relief or consents to such filing or to the appointment
of or taking possession by a Custodian of it or for all or substantially
all of its property, and such Custodian is not discharged within 120 days;
(iv) makes a general assignment for the benefit of its creditors; or (v)
admits in writing its inability to pay its debts generally as they become
due; or
(7) any other Event of Default provided for pursuant to Section
2.01 with respect to Securities of that series.
(b) If an Event of Default (other than an Event of Default
specified in Sections 6.01(a)(5) or 6.01(a)(6)) with respect to Securities of
any series at the time Outstanding occurs and is continuing, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Securities of that series then Outstanding hereunder (voting as a single
class), by notice in writing to the Company (and to the Trustee if given by
such Securityholders), may declare the principal of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable.
If an Event of Default specified in Sections 6.01(a)(5) or 6.01(a)(6) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof)
and the interest accrued thereon, if any, shall automatically, and without
any declaration or other action on the part of the Trustee or any holder,
become immediately due and payable.
(c) At any time after the principal of the Securities of that series
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount of
the Securities of that series then Outstanding hereunder (voting as a single
class), by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of that series and the principal of, and premium, if
any, on any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and premium,
if any, and, to the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per annum or Yield to
Maturity (in the case of Original Issue Discount Securities) expressed in the
Securities of that series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the date of such payment
or deposit) and the amount payable to the Trustee under Section 7.06, and (ii)
any and all Events of Default under the Indenture with respect to such series,
other than the nonpayment of principal on Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) that
shall not have become due by their terms, shall have been remedied or waived as
provided in Section 6.08.
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No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Securities of that series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company, and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Securities of a series as
and when the same shall have become due and payable, and such default shall have
continued for a period of 30 days, or (2) in case it shall default in the
payment of the principal of, or premium, if any, on any of the Securities of a
series when the same shall have become due and payable, whether upon maturity of
the Securities of a series or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities of that series, the whole amount that
then shall have been become due and payable on all such Securities for
principal, and premium, if any, or interest, or both, as the case may be, with
interest upon the overdue principal, and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum or Yield to Maturity (in the case
of Original Issue Discount Securities) expressed in the Securities of that
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, or its creditors or property, the Trustee shall have
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series 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 Securityholders, to pay to the Trustee
any amount due it under Section 7.06.
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(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities of
that series, may be enforced by the Trustee without the possession of any of
such Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or 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 payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of the
Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall, subject to the subordination
provisions hereof, be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of
principal, or premium, if any, or interest, upon presentation of the Securities
of that series, and notation thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal, and premium, if any, and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, and
premium, if any, and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns or to whomever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law or in bankruptcy or otherwise upon or under or
with respect to this Indenture or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with
respect to the Securities of such series specifying such Event of Default, as
hereinbefore provided; (ii) the holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute
28
such action, suit or proceeding in its own name as trustee hereunder; (iii) such
holder or holders shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby; and (iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 60 day period, the holders of a
majority in aggregate principal amount of the Securities of that series do not
give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to receive
payment of the principal of, and premium, if any, and interest on such Security,
as therein provided, on or after the respective due dates expressed in such
Security (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates
or redemption date, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security of such series
with every other such taker and holder and the Trustee, that no one or more
holders of Securities of such series shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other of such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of
the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding (treated as a single class),
determined in accordance with Section 8.04, 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 such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or be unduly prejudicial to
the rights of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.04. Subject to the provisions of Section
7.01, 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 Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability.
29
SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities
by such holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, 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 Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of, or
premium, if any, or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.
SECTION 6.08 Waiver of Past Defaults.
The holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series (voting as a single class),
determined in accordance with Section 8.04, may on behalf of the holders of all
the Securities of 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 any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the holder
of each Outstanding Security of such series affected; provided, however,
that if the Securities of such series are held by an American Equity Trust
or a trustee of such trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable American Equity Trust
shall have consented to such waiver or modification to such waiver;
provided, further, that if the consent of the holder of each outstanding
Security is required, such waiver shall not be effective until each holder
of the Trust Securities of the applicable American Equity 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 this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.09 Trustee to Give Notice of Default.
(a) The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee to all holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act of 1939, unless in each case such defaults
shall have been cured before the mailing of such notice (the term "defaults"
for the purpose of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of a default in the
payment of the principal of, premium, if any, or interest on ay of the
Securities of such series, or in the payment of any sinking fund installment
on such series, the Trustee shall be protected in withholding such notice if
and so long as the Trustee in good faith shall, by a
30
Responsible Officer or Officers of the Trustee, determine that withholding of
such notice is in the interests of the Securityholders of such series.
(b) The Trustee shall not be deemed to have knowledge of any default
except:
(1) a default under Section 6.01(a)(1) or 6.01(a)(2), provided
that the Trustee is also the Paying Agent; or
(2) any default as to which the Trustee shall have received
written notice of or which Responsible Officer charged with the
administration of this Indenture shall have actual knowledge.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing or waiving of all
Events of Default with respect to the Securities of that series that may have
occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to the Securities of a
series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series 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.
(b) 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) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(a) the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable with respect to the Securities of such series except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, 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 or omitted to be taken by it in good faith in accordance with the
direction of the holders of
31
not less than a majority in principal amount of the Securities of any
series at the time Outstanding 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 with respect to the Securities of that series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(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, consent, order, approval, bond, security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company, by the President or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) The Trustee may consult with legal counsel and the written advice
of such counsel or any Opinion of Counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in accordance and reliance
thereon;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Securities (that has not been cured
or waived) to exercise with respect to Securities of that series such of the
rights and powers vested in it by this Indenture, and to 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;
(e) The Trustee shall not be liable for any action taken or omitted
to be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(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, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities of the particular series affected thereby (determined as provided in
Section 8.04); provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by it
in the
32
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities.
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds of such Securities, or
for the use or application of any moneys paid over by the Trustee in accordance
with any provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any Paying Agent other than
the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any Paying Agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Paying Agent or
Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), as the Company, and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its legal counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to
33
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the 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. The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Securities of one or more series by giving written
notice thereof to the Company and by transmitting notice of resignation by mail,
first class postage prepaid, to the Securityholders of such series, as their
names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Securities of such
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series by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
mailing 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 Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities
for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, 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 may remove the Trustee with respect to all Securities and
appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or (ii) unless the Trustee's duty to resign is stayed as provided herein,
any Securityholder who has been a bona fide holder of a Security or
Securities for at least six months may, on behalf of that holder and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
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SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee 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 the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the 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 Securities of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Securities of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
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the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Securities
of a particular series may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders
of such majority or specified percentage of that series have joined therein may
be evidenced by any instrument or any number of instruments of similar tenor
executed by such holders of Securities of that series in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
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SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization) or
his agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any Paying Agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered
upon the books of the Company as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal of, premium, if
any, and (subject to Section 2.03) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any Paying Agent nor any
Security Registrar shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that series
that are owned by the Company or any other obligor on the Securities of that
series or by any Person directly or indirectly controlling or controlled by or
under common control with the Company or any other obligor on the Securities of
that series shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities of such series that the Trustee actually knows are so
owned shall be so disregarded. The Securities so owned that have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not a
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
legal counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except
38
as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency herein, in
any supplemental indenture or in the Securities of any series;
(2) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(3) to add to the covenants of the Company for the benefit of
the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(4) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(5) to make any change that does not adversely affect the
rights of any Securityholder in any material respect;
(6) to provide for the issuance of and establish the form and
terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any series of Securities, or to
add to the rights of the holders of any series of Securities;
39
(7) to add any additional Events of Default for the benefit of
the holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of such series);
(8) to secure the Securities;
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.11; or
(10) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligation of the Company
pursuant to Article X hereof.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures
at the time Outstanding, the Company, when authorized by Board Resolutions, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 9.01 the rights of the holders of the Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the holders of each Security then
Outstanding and affected thereby, (i) extend the fixed maturity of any
Securities of any series, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof; (ii) reduce the amount of principal of an
Original Issue
40
Discount Security or any other Security payable upon acceleration of the
maturity thereof pursuant to Section 6.01(b); (iii) change the currency in which
any Security or any premium or interest is payable; (iv) impair the right to
enforce any payment on or with respect to any Security; (v) adversely change the
right to convert or exchange, including decreasing the conversion rate or
increasing the conversion price of, such Security (if applicable); (vi) reduce
the percentage in principal amount of outstanding Securities of any series, the
consent of the holders of which is required for modification or amendment of
this Indenture or for waiver of compliance with certain provisions of this
Indenture or for waiver of certain defaults; (vii) reduce the requirements
contained in this Indenture for quorum or voting; or (viii) modify any of the
above provisions; provided, further, that if the Securities of such series are
held by an American Equity Trust or a trustee of such Trust, any such
supplemental indenture that affects the interests or rights of the holders of
the Trust Securities shall not be effective until the holders of not less than a
majority in liquidation preference of Trust Securities of the applicable
American Equity Trust shall have consented to such supplemental indenture; and,
provided, further, that if the consent of the holder of each outstanding
Security is required, such supplemental indenture shall not be effective until
each holder of the Trust Securities of the applicable American Equity Trust
shall have consented to such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Article X, this Indenture shall, with respect
to such series, be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities of the series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Article X, may bear a notation
in form approved by the Company, provided such form meets the requirements of
any exchange upon which such series may be listed, as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Securities of that series so modified as to conform, in the opinion of the Board
of Directors of the Company, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the Company, authenticated by
the Trustee and delivered in exchange for the Securities of that series then
Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may, in its discretion, but shall not be
obligated to, enter into such supplemental indenture. The Trustee,
41
subject to the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article is authorized or permitted by, and conforms to, the terms of this
Article and that it is proper for the Trustee under the provisions of this
Article to join in the execution thereof; provided, however, that such Opinion
of Counsel need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc.
The Company may not (a) merge with or into or consolidate with, or (b)
sell, assign, transfer, lease or convey all or substantially all of its
properties and assets to, any Person other than, with respect to this clause
(b), a direct or indirect wholly-owned subsidiary of the Company, and no Person
shall (x) merge with or into or consolidate with the Company, or (y) except for
any direct or indirect wholly-owned subsidiary of the Company, sell, assign,
transfer, lease or convey all or substantially all of its properties and assets
to the Company, unless:
(a) the Company is the surviving corporation or the Person formed by
or surviving such merger or consolidation or to which such sale, assignment,
transfer, lease or conveyance shall have been made (the "Successor"), if other
than the Company, shall expressly assume by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Securities, this Indenture, the Common
Securities Guarantee and the Preferred Securities Guarantee;
(b) immediately after giving effect to such transaction, no default
or Event of Default shall have occurred and be continuing;
(c) if at the time any Preferred Securities are outstanding, such
transaction is not prohibited under the Declaration and the Preferred Securities
Guarantee; and
(d) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such supplemental indenture complies
with this Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Securities with the same effect as if the Successor had been named as the
Company herein but, in the case of a sale, assignment, transfer, lease or
conveyance of all or substantially all of the properties and assets of the
Company, the predecessor Company will not be released from its obligations to
pay the principal of, premium, if any, and interest on the Securities.
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ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated (other
than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07) and Securities for
whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company (and thereupon repaid to
the Company or discharged from such trust, as provided in Section 11.04); or (b)
all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (i) the Company shall irrevocably
deposit or cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all Securities
of that series not theretofore delivered to the Trustee for cancellation,
including principal, and premium, if any, and interest due or to become due to
such date of maturity or date fixed for redemption, as the case may be, and (ii)
the Company shall also pay or cause to be paid all other sums payable hereunder
with respect to such series by the Company, then this Indenture shall thereupon
cease to be of further effect with respect to such series except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall
survive until the date of maturity or redemption date, as the case may be, and
Sections 7.06 and 11.04, that shall survive to such date and thereafter, and the
Trustee, on demand of the Company and at the cost and expense of the Company,
shall execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02 Deposited Moneys and Governmental Obligations to be
Held in Trust.
All moneys or Governmental Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be
held in trust and shall be available for payment as due, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent),
to the holders of the particular series of Securities for the payment or
redemption of which such moneys or Governmental Obligations have been deposited
with the Trustee.
SECTION 11.03 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any Paying Agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
SECTION 11.04 Repayment to Company.
Any moneys or Governmental Obligations deposited with any Paying Agent
or the Trustee, or then held by the Company, in trust for payment of principal
of or premium, if any, or interest on the Securities of a particular series that
are not applied but remain unclaimed by the holders of such Securities for at
least two years after the date upon which the principal of, and premium, if any,
or interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company on
43
May 31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the Paying Agent and the Trustee shall be released
from all further liability with respect to such moneys or Governmental
Obligations, and the holder of any of the Securities entitled to receive such
payment shall thereafter, as an unsecured general creditor, look only to the
Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, past, present or future as such, of the Company or 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 by any legal or equitable proceeding or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, stockholders, officers or
directors as such, of the Company or of any predecessor or successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness hereby authorized,
or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section
13.02 or Section 13.03 applied to any Securities or any series of Securities,
as the case may be, in accordance with any applicable requirements provided
pursuant to Section 2.01 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 2.01 for
such Securities.
SECTION 13.02 Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section
applied to any Securities or any series of Securities, as the case may be,
the Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 13.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations under
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such Securities and this Indenture insofar as such Securities are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
holders of such Securities to receive, solely from the trust fund described
in Section 13.04 and as more fully set forth in such Section, payments in
respect of the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect to such
Securities under Sections 2.05, 2.06, 2.07, 4.01, 4.02 and 4.03, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, the Company may
exercise its option to have this Section applied to any Securities
notwithstanding the prior exercise of its option to have Section 13.03
applied to such Securities. Following a Defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
SECTION 13.03 Covenant Defeasance.
Upon the Company's exercise of its option to have this
Section applied to any Securities or any series of Securities, as the case may
be, (1) the Company shall be released from its obligations under Article X,
Section 4.06, and any covenants provided pursuant to Sections 2.01(15), 9.01(3)
or 9.01(6) for the benefit of the holders of such Securities and (2) the
occurrence of any event specified in Sections 6.01(a)(3) (with respect to any of
Article X, Section 4.06, and any such covenants provided pursuant to Sections
2.01(15), 9.01(3) or 9.01(6)) and 6.01(a)(7) shall be deemed not to be or result
in an Event of Default, in each case with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 13.04
are satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 6.01(a)(3)), whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or by reason of
any reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
13.02 or Section 13.03 to any Securities or any series of Securities, as the
case may be:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 7.09 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the holders of such
Securities, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest 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 (C) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, (i) the principal of and any premium and interest on such
Securities on the respective Stated Maturities and (ii) any mandatory
sinking fund payments applicable to such Securities on the day on which
such payments are due and payable, in each case, in accordance with the
terms of this Indenture and such Securities.
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(2) In the event of an election to have Section 13.02 apply to
any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case (A)
or (B) to the effect that, and based thereon such opinion shall confirm
that, the holders of such Securities will not recognize income, gain or
loss for federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be
subject to federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to
any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the holders of such Securities will not recognize income, gain or loss
for federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that it has been informed by the
relevant securities exchange(s) that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 6.01(a)(5)
and 6.01(a)(6), at any time on or prior to the 90th day after the date of
such deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
indenture or other agreement or instrument for borrowed money, pursuant to
which in excess of $50,000,000 principal amount is then outstanding, to
which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with (other than the 90 day period specified in Section
13.04(5)).
46
SECTION 13.05 Deposited Money and Government Obligations to Be Held
in Trust; Miscellaneous Provisions.
Subject to the provisions of Section 4.03(d), all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee or other
qualifying trustee (solely for purposes of this Section and Section 13.06, the
Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 13.04 in respect of any Securities shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the holders of such Securities, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon request of the
Company any money or Government Obligations held by it as provided in Section
13.04 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 13.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Sections 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 13.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the holders of such Securities to receive
such payment from the money so held in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their respective
successors and assigns, whether so expressed or not.
47
SECTION 14.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
SECTION 14.03 Notices.
Except as otherwise expressly provided herein any notice or demand
that by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Securities to or on the Company shall
be in writing (which may be by facsimile) and may be given or served by being
deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows:
American Equity Investment Life Holding Company, 0000 Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx Xxx Xxxxxx, Xxxx, Attention: Chief Financial Officer, with
copies of any notice of an Event of Default to the attention of the General
Counsel at the same address. Any notice, election, request or demand by the
Company or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
When this Indenture provides for notice to holders of Securities, such
notice shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each holder entitled thereto, at his or her last address as it
appears in the Security Register. In any case where notice to such 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 of Securities. 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
of Securities shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 14.04 Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of
New York, and for all purposes shall be
construed in accordance with the laws of said State.
SECTION 14.05 Treatment of Securities as Debt.
It is intended that the Securities will 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.
SECTION 14.06 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent 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 have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this
48
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (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 such Person, 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 or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 14.07 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in one
or more indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or principal,
and premium, if any, may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of maturity or redemption,
and no interest shall accrue for the period after such nominal date.
SECTION 14.08 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.09 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 14.10 Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 14.11 Assignment.
The Company will have the right at all times to assign any of its
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, will remain liable for all such obligations. Subject to the
foregoing, the Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
49
SECTION 14.12 Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by
an American Equity Trust or a trustee of such Trust, if the Property Trustee of
such Trust fails to enforce its rights under this Indenture as the holder of the
series of Securities held as the assets of such American Equity Trust, any
holder of Preferred Securities 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, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest or principal on the applicable series of
Securities on the date such interest or principal is otherwise payable (or in
the case of redemption, on the redemption date), the Company acknowledges that a
holder of Preferred Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of or interest on the
applicable series of Securities having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder as determined
after the respective due date specified in the applicable series of Securities.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities issued
hereunder and under any supplemental indenture or by any resolutions by the
Board of Directors ("Additional Provisions") by such holder's acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article XV; and each holder of a Security, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Securities issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinate in right of payment to the prior
payment in full of all Senior Indebtedness of the Company, whether outstanding
at the date of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 15.02 Default on Senior Indebtedness or Under this
Indenture.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, if any, interest or any other payment due
on any Senior Indebtedness of the Company, as the case may be, or in the event
that the maturity of any Senior Indebtedness of the Company, as the case may be,
has been accelerated because of a default, then, in either case, no payment
shall be made by the Company with respect to the principal (including redemption
and sinking fund payments) of, or premium, if any, or interest on the
Securities.
In the event that the Securities of any series are declared due and
payable before their expressed maturity because of the occurrence of an Event of
Default (under circumstances when the provisions of Section 15.03 shall not be
applicable), the holders of all Senior Indebtedness shall be entitled to receive
payment in full in money or money's worth of such Senior Indebtedness before the
holders of such Securities are entitled to receive payment on account of the
principal of, premium, if any, or interest on such Securities.
50
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, before all Senior Indebtedness is paid in full,
such payment shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear.
SECTION 15.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership, general assignment, marshaling of any assets or liabilities for
the benefit of creditors or other proceedings, all amounts due upon all Senior
Indebtedness of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
by the Company on account of the principal, and premium, if any, or interest on
the Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article XV, shall be paid by the Company or by
any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the holders or by the Trustee under
the Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Securities to the payment of all Senior Indebtedness of the Company, as
the case may be, that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Senior Indebtedness are not, without the consent of such holders, altered
by such reorganization or readjustment. The consolidation of the Company with,
or the merger of the Company into, another corporation or the
51
liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article X of this
Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article X of this Indenture. Nothing in Section
15.02 or in this Section 15.03 shall apply to claims of, or payments, the
Trustee under or pursuant to Section 7.06 of this Indenture.
SECTION 15.04 Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the holders of the Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of, and premium,
if any, and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
holders of the Securities or the Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions of
this Article XV to or for the benefit of the holders of such Senior Indebtedness
by holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the
holders of the Securities, be deemed to be a payment by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article XV are and are intended solely for the purposes of defining the
relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of the Company, and the
holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of, and
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and creditors
of the Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall anything herein or
therein prevent the Trustee or the holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XV of the holders
of such Senior Indebtedness in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee, subject to the provisions of Article VII of
this Indenture, and the holders shall be entitled to conclusively rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the holders, for the purposes of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XV.
SECTION 15.05 Trustee to Effectuate Subordination.
Each holder of Securities by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such action
as may be necessary or appropriate to effectuate the
52
subordination provided in this Article XV and appoints the Trustee such holder's
attorney-in-fact for any and all such purposes.
SECTION 15.06 Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article XV. Notwithstanding the provisions of
this Article XV or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section 15.06 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of, or premium, if any or interest on
any debt security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VII of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of such
holder), to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such 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 such Senior Indebtedness and,
subject to the provisions of Article VII of this Indenture, the Trustee shall
not be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to holders, the Company or any other Person money or assets to which any
holder of such Senior Indebtedness shall be entitled by virtue of this Article
XV or otherwise.
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Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.06.
SECTION 15.08 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company, as the case may be, or by any act or failure to act, in good faith, by
any such holder of Securities, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the holders of
Securities, without incurring responsibility to the holders of Securities and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Securities to the holders of
such Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company, as the case may be, and any
other Person.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original. But all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
AMERICAN EQUITY INVESTMENT
LIFE HOLDING COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
and General Counsel
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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