EXHIBIT 4(r)
________________________________________________________________________________
RELIASTAR FINANCIAL CORP.
TO
Wilmington Trust Company, as Trustee
______________________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 3, 1997
8.10% Subordinated Deferrable
Interest Notes Due June 3, 2027
________________________________________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I Definitions......................................................... 2
ARTICLE II General Terms and Conditions of the Notes.......................... 3
Section 2.1 Designation and Principal Amount............................. 3
Section 2.2 Maturity..................................................... 3
Section 2.3 Form and Payment............................................. 4
Section 2.4 Global Security.............................................. 4
Section 2.5 Interest..................................................... 5
Section 2.6 Authorized Denominations..................................... 6
Section 2.7 Conversion................................................... 7
Section 2.8 Paying Agent and Authenticating Agent........................ 7
ARTICLE III Redemption of the Notes........................................... 7
Section 3.1 Special Event Redemption..................................... 7
Section 3.2 Optional Redemption by Company............................... 7
Section 3.3 No Sinking Fund.............................................. 8
Section 3.4 No Repayment................................................. 8
ARTICLE IV Extension of Interest Payment Period............................... 8
Section 4.1 Extension of Interest Payment Period......................... 8
Section 4.2 Notice of Extension.......................................... 9
ARTICLE V Expenses............................................................10
ARTICLE VI Additional Events of Default and Covenants.........................10
Section 6.1 Events of Default............................................10
Section 6.2 Covenants....................................................11
ARTICLE VII No Defeasance.....................................................12
ARTICLE VIII Form of Note.....................................................12
ARTICLE IX Original Issue of Notes............................................19
Section 9.1 Original Issue of Notes......................................19
Section 9.2 Reports by the Trustee.......................................20
ARTICLE X Limitation on Waivers and Consents..................................20
ARTICLE XI Miscellaneous......................................................20
Section 11.1 Ratification of Indenture...................................20
Section 11.2 Trustee Not Responsible for Recitals........................20
Section 11.3 Governing Law...............................................21
Section 11.4 Separability................................................21
Section 11.5 Counterparts................................................21
Section 11.6 Third Party Beneficiaries...................................21
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SECOND SUPPLEMENTAL INDENTURE, dated as of June 3, 1997 (the "Second
Supplemental Indenture"), between ReliaStar Financial Corp., a Delaware
corporation (the "Company"), and Wilmington Trust Company not in its individual
capacity but solely as trustee (the "Trustee") under the Indenture dated as of
March 29, 1996 between the Company and the Trustee, as amended by the First
Supplemental Indenture dated March 29, 1996 (the "Indenture").
RECITALS OF THE COMPANY
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount, which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debt Securities to be known
as its 8.10% Junior Subordinated Deferrable Interest Notes due June 3, 2027 (the
"Notes"), the form and substance of such Notes and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this Second
Supplemental Indenture;
WHEREAS, ReliaStar Financing II, a Delaware statutory business trust (the
"Trust"), has offered to the public $125 million aggregate liquidation amount of
its 8.10% Trust Originated Preferred Securities (the "Preferred Securities"),
representing undivided beneficial interests in the assets of the Trust and
proposes to invest the proceeds from such offering in $125 million aggregate
principal amount of the Notes;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture; and
WHEREAS, all requirements necessary to make this Second Supplemental
Indenture a valid instrument in accordance with its terms and to make the Notes,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company have been performed, and execution and delivery
of this Second Supplemental Indenture have been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes
by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Notes and the terms, provisions and
conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the Declaration:
(i) Business Day; (ii) Common Securities; (iii) Delaware Trustee; (iv)
Depositary; (v) Dissolution Tax Opinion; (vi) Distribution; (vii) Ministerial
Action; (viii) No Recognition Opinion; (ix) Preferred Securities Certificates;
(x) Preferred Securities Guarantee; (xi) Property Trustee; (xii) Redemption Tax
Opinion; (xiii) Regular Trustees; (xiv) Tax Event; and (xv) Trust Securities;
and
(g) the following terms have the meanings given to them in this Section
1.l(g):
"Additional Interest" has the meaning given such term in Section 2.5(c).
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"Compounded Interest" has the meaning given such term in Section 4.l.
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"Coupon Rate" has the meaning given such term in Section 2.5 (a).
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"Declaration" means the Declaration of Trust dated as of May 8, 1997
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executed by the Company, as sponsor, and the trustees of the Trust and the
holders from time to time of undivided beneficial interests in the Trust, as
amended.
"Deferred Interest" means Additional Interest and Compounded Interest.
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"Dissolution Event" means that as a result of the occurrence and
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continuation of a Tax Event, the Trust is to be dissolved in accordance with the
Declaration, and the Notes held by the Property Trustee are to be distributed to
the holders of the Trust Securities issued by the Trust pro rata in accordance
with the Declaration.
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"Extended Interest Payment Period" has the meaning given such term in
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Section 4.1.
"Maturity Date" means the date on which the Notes mature and on which the
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principal shall be due and payable together with all accrued and unpaid interest
thereon, including Deferred Interest, if any.
"90 Day Period" has the meaning given to such term in Section 3.1.
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"Non Book-Entry Preferred Securities" has the meaning given such term in
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Section 2.4(a).
"Redemption Price" has the meaning given to such term in Section 3.1.
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"Reporting Date" means that date that is one year from the date first
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written herein and each one year anniversary of such date thereafter.
"Stated Maturity Date" means June 3, 2027.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount.
There is hereby authorized a series of Debt Securities designated the
"8.10% Junior Subordinated Deferrable Interest Notes due June 3, 2027", limited
in aggregate principal amount to $128,865,979.40 (except for Debt Securities of
such series authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of such series pursuant to
Sections 304, 305, 306, 906 or 1303 of the Indenture), which amount shall be as
set forth in a Company Order for the authentication and delivery of the Notes
pursuant to Section 303 of the Indenture.
Section 2.2 Maturity.
The Maturity Date will be the Stated Maturity Date provided that the
Company may at its option at any time prior to the Stated Maturity Date extend
the Maturity Date to a date not later than June 3, 2046; provided, however, that
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at the time such election is made and at the effective time of such extension
(as specified by the Company) (i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Company is not in default in the payment
of any interest or principal on the Notes, and (iii) in the case of Notes held
by the Trust, the Trust is not in arrears on payments of Distributions and no
deferred Distributions are accumulated. In the event the Company elects to
extend the stated maturity of the Notes,
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it shall give notice of any such change to the Trustee, and the Trustee shall
give notice of such extension to the Holders of the Notes, not more than 90 and
not less than 30 days prior to the effective time of such extension.
Section 2.3 Form and Payment.
Except as provided in Section 2.4, the Notes shall be issued as Registered
Securities in fully registered certificated form without interest coupons.
Principal and interest on the Notes issued in certificated form will be payable,
the transfer of such Notes will be registrable and such Notes will be
exchangeable for Notes bearing identical terms and provisions at the office or
agency of the Trustee in the City of Wilmington, Delaware; provided, however,
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that payment of interest may be made at the option of the Company by check
mailed to the Holder at such address as shall appear in the Security Register or
by wire transfer to such account as may have been appropriately designated by
such Holder. Notwithstanding the foregoing, so long as the Holder of any Notes
is the Property Trustee, the payment of the principal of and interest, including
Deferred Interest, if any, on such Notes held by the Property Trustee will be
made at such place and to such account as may be designated by the Property
Trustee. The Notes will be denominated in U.S. dollars and payments of
principal and interest on the Notes shall be made in U.S. dollars.
Section 2.4 Global Security.
(a) In connection with a Dissolution Event, the Notes in certificated form
may be presented to the Trustee by the Property Trustee in exchange for a global
Note in an aggregate principal amount equal to all Outstanding Debt Securities
of such series (a "Global Security") to be registered in the name of the
Depositary, or its nominee, and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to the instructions of
the Regular Trustees. The Company upon any such presentation shall execute a
Global Security in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this Second Supplemental Indenture. Payments on the Notes issued as a Global
Security will be made to the Depositary.
If any Preferred Securities are held in non book-entry certificated form,
the Notes in certificated form may be presented to the Trustee by the Property
Trustee and any Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Depositary or its nominee
("Non Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Notes presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which time
such Preferred Security Certificates will be canceled, and a Note registered in
the name of the holder of the Preferred Security Certificate or the transferee
of the holder of such Preferred Security Certificate, as the case may be, with
an aggregate principal amount equal to the aggregate liquidation amount of the
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Preferred Security Certificate canceled will be executed by the Company and
delivered to the Trustee together with a Company Order for authentication and
delivery in accordance with the Indenture and this Second Supplemental
Indenture. On issue of such Notes, Notes with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee will be deemed
to have been canceled.
(b) A Global Security may be transferred, in whole but not in part, only to
another nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary or if at any time the Depositary for such
series shall no longer be registered or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, and
a successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, the Company, in its sole discretion, determines that the
Global Security shall be exchangeable for definitive registered securities or if
an Event of Default shall have occurred, the Company will execute and, subject
to Article Two of the Indenture, the Trustee will authenticate and deliver the
Notes in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. In
addition, the Company may at any time determine that the Notes shall no longer
be represented by a Global Security. In such event the Company will execute
and, subject to Article Two of the Indenture, the Trustee will authenticate and
deliver the Notes in definitive registered form without coupons, in authorized
denominations, and in a principal amount equal to the principal amount of the
Global Security in exchange for such Global Security. Upon the exchange of the
Global Security for such Notes in definitive registered form without coupons, in
authorized denominations, the Global Security shall be canceled by the Trustee.
Such Notes in definitive registered form issued in exchange for the Global
Security shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Notes to the Depositary for delivery to the Persons in whose
names such Notes are so registered.
(d) If any Debt Securities of this series are issued in global form, the
U.S. Depositary for such global Debt Securities shall be The Depository Trust
Company, or any successor to such U.S. Depositary appointed pursuant to the
Indenture.
Section 2.5 Interest.
(a) Each Note will bear interest at the rate of 8.10% per annum (the
"Coupon Rate") from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable
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under applicable law) on any overdue installment of interest at the Coupon Rate,
compounded quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on each Interest Payment Date, commencing on June 30, 1997,
to the Person in whose name such Note or any Predecessor Security is registered,
at the close of business on the Regular Record Date for such interest
installment, which, in respect of any Notes of which the Property Trustee is the
Holder or a Global Security, shall be the close of business on the Business Day
next preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if the Preferred Securities are no longer in book-entry only form or
if pursuant to the Indenture the Notes are not represented by a Global Security,
the Company may select a Regular Record Date for such interest installment which
shall be any date at least one Business Day before an Interest Payment Date. The
Interest Payment Dates for the Notes shall be March 31, June 30, September 30
and December 31.
(b) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed will be computed on the
basis of the actual number of days elapsed in such a 30-day month. In the event
that any date on which interest is payable on the Notes is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, notwithstanding the
provisions of Section 113 of the Indenture, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(c) If, at any time while the Property Trustee is the Holder of any Notes,
the Trust or the Property Trustee, on behalf of the Trust, is required to pay
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property Trustee, on behalf of
the Trust, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee, on behalf of the
Trust, after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee, on
behalf of the Trust, would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
Section 2.6 Authorized Denominations.
The Notes shall be issuable in denominations of $25 and integral multiples
of $25 in excess thereof.
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Section 2.7 Conversion.
The Notes are not subject to conversion at the option of the Holder or
otherwise.
Section 2.8 Paying Agent and Authenticating Agent.
Wilmington Trust Company is hereby appointed as Paying Agent and Security
Registrar for the Notes, and the appointment of Wilmington Trust Company as
Authenticating Agent is hereby ratified and approved.
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1 Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular Trustees shall
have been informed by tax counsel rendering the Dissolution Tax Opinion that a
No Recognition Opinion cannot be delivered to the Trust, then, notwithstanding
Section 3.2(a) but subject to Section 3.2(b), the Company shall have the right,
upon not less than 30 days nor more than 60 days notice to the Holders of the
Notes, to redeem the Notes in whole or in part for cash at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Redemption Price") within
90 days following the occurrence of such Tax Event (the "90 Day Period");
provided, however, that, if at the time there is available to the Company the
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opportunity to eliminate, within the 90 Day Period, the Tax Event by taking some
Ministerial Action, the Company shall pursue such Ministerial Action in lieu of
redemption; and provided, further, that the Company shall have no right to
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redeem the Notes while the Trust is pursuing any Ministerial Action pursuant to
its obligations under the Declaration. The Redemption Price shall be paid prior
to 12:00 noon, New York time, on the Redemption Date or such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 10:00 a.m., New York time, on
the date such Redemption Price is to be paid.
Section 3.2 Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to the provisions of
Article Eleven of the Indenture, except as otherwise specified in this Second
Supplemental Indenture, the Company shall have the right to redeem the Notes, in
whole or in part, from
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time to time, on or after June 3, 2002, at the Redemption Price. Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more than 60
days' notice to the Holders of the Notes, at the Redemption Price. If the Notes
are only partially redeemed pursuant to this Section 3.2, the Notes will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided, however, that, if at the time of redemption the Notes are registered
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as a Global Security, the Depositary shall determine the principal amount of
such Notes credited to each of its participant accounts to be redeemed. The
Redemption Price shall be paid prior to 12:00 noon, New York time, on the
Redemption Date or at such earlier time as the Company determines, provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption Price
is to be paid.
(b) If a partial redemption of the Notes would result in the delisting of
the Preferred Securities issued by the Trust from any national securities
exchange or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption and
may only redeem the Notes in whole.
Section 3.3 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
Section 3.4 No Repayment.
The Notes are not subject to repayment at the option of the Holders.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1 Extension of Interest Payment Period.
The Company shall have the right, at any time during the term of the Notes,
from time to time, to defer payments of interest by extending the interest
payment period of such Notes for up to 20 consecutive quarters (the "Extended
Interest Payment Period"); provided, that during any such Extended Interest
Payment Period, (a) the Company shall not declare or pay dividends on, make any
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to any of its capital stock, and (b) the Company shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior to the Notes. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 4.1, will bear interest thereon
at the Coupon Rate compounded quarterly for each quarter of the Extended
Interest Payment Period ("Compounded Interest"). At the end of the Extended
Interest
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Payment Period the Company shall pay all interest accrued and unpaid on the
Notes, including any Deferred Interest that shall be payable, to the Holders of
the Notes in whose names the Notes are registered in the Security Register on
the first Regular Record Date after the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarters.
Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof.
Section 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the Company
shall give written notice to the Regular Trustees, the Property Trustee, the
Delaware Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (a) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (b) the date the Trust is required to give notice of the record date
or the date such Distributions are payable to the New York Stock Exchange or
other applicable self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only Holder of the Notes at the time
the Company selects an Extended Interest Payment Period, the Company shall give
the Holders of the Notes and the Trustee written notice of its selection of such
Extended Interest Payment Period 10 Business Days before the earlier of (i) the
next succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the Regular Record Date or Interest Payment Date of such
interest payment to the New York Stock Exchange or other applicable self-
regulatory organization or to Holders of the Notes.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
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ARTICLE V
EXPENSES
In connection with the offering, sale and issuance of the Notes to the
Property Trustee in connection with the sale of the Trust Securities by the
Trust, the Company shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Notes, including compensation of the Trustee under the Indenture in
accordance with the provisions of Section 607 of the Indenture;
(b) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust; and
(c) pay all other debts and obligations of the Trust (other than with
respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization
of the Trust, the fees and expenses of the Property Trustee, the trustee under
the Preferred Securities Guarantee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses of printing and engraving and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of Trust
assets).
ARTICLE VI
ADDITIONAL EVENTS OF DEFAULT AND COVENANTS
Section 6.1 Events of Default.
In addition to the Events of Default set forth in the Indenture, an "Event
of Default," whenever used in the Indenture, this Second Supplemental Indenture
or the Notes, shall include the voluntary or involuntary dissolution or winding
up of the business of the Trust or other termination of the existence of the
Trust, other than in connection with (i) the distribution of the Notes to
holders of the Trust Securities in liquidation of their interests in the Trust,
(ii) the redemption of all of the outstanding Trust Securities, or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the Declaration.
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Section 6.2 Covenants.
In addition to the covenants set forth in Article X of the Indenture, the
following covenants shall apply to the Notes:
(a) Limitation on Dividends; Transactions with Affiliates.
If (i) there shall have occurred any event that would constitute an
Event of Default, (ii) the Company shall be in default with respect to its
payment of any obligations under the Preferred Securities Guarantee
relating to the Trust or (iii) the Company shall have given notice of its
election to defer payments of interest on the Notes by extending the
interest payment period as provided herein and such period, or any
extension thereof, shall be continuing, then (A) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to any of its
capital stock, and (B) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or junior to
the Notes; provided, however, that restriction (A) above does not apply to
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any stock dividends paid by the Company where the dividend stock is the
same as that on which the dividend is being paid.
(b) Covenants as to the Trust.
For so long as the Trust Securities remain outstanding, the Company
will (i) maintain 100% direct or indirect ownership of the Common
Securities, provided, however, that any permitted successor of the Company
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under the Indenture may succeed to the Company's ownership of the Common
Securities, (ii) use its reasonable efforts to cause the Trust (a) to
remain a business trust, except in connection with a distribution of the
Notes, the redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, and
(b) to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes,
and (iii) to use its reasonable efforts to cause each holder of Trust
Securities to be treated as owning an individual beneficial interest in the
Notes.
(c) Acknowledgment of Rights of Holders of Preferred Securities.
The Company acknowledges that, with respect to any Notes held by the
Trust or a trustee of the Trust, if the Property Trustee fails to enforce
its rights under the Indenture and this Second Supplemental Indenture as
the Holder of the Notes held as the assets of the Trust, any holder of
Preferred Securities may, to the extent permitted by applicable law,
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under the Indenture and this Second Supplemental
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Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or
principal on the Notes on the date such interest or principal is otherwise
payable (or in the case of redemption, on the Redemption Date), the Company
acknowledges that a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal of or
interest on the Notes having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder on or after
the respective due date specified in the Notes.
(d) Listing of Notes.
If the Notes are to be issued as a Global Security in connection with
the distribution of the Notes to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company will, if the
Notes are not already so listed, use its best efforts to list such Notes on
the New York Stock Exchange or on such other national securities exchange,
the Nasdaq National Market or other organization on which the Preferred
Securities are then listed.
ARTICLE VII
NO DEFEASANCE
The Notes shall not be subject to defeasance as set forth in Section 403 or
Article XV of the Indenture.
ARTICLE VIII
FORM OF NOTE
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[**IF THE NOTE IS TO BE A GLOBAL SECURITY, INSERT - This Debt Security is a
Global Security within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debt Security is exchangeable for Global Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debt Security
(other than a transfer of this Debt Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary or another
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nominee of the Depositary) may be registered except in limited circumstances.
Every Debt Security delivered upon registration of transfer of, or in exchange
for, or in lieu of this Global Security shall be a Global Security, subject to
the foregoing, except in the limited circumstances described above.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (or to such other entity as is
requested by an authorized representative of DTC) and any payment is made to
Cede & Co. (or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.]
No. _________________
$____________________
8.10% JUNIOR SUBORDINATED DEFERRABLE INTEREST NOTE
DUE June 3, 2027
ReliaStar Financial Corp., a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ReliaStar Financing II, or
registered assigns, the sum of ____________ Dollars on June 3, 2027, or, at the
Company's election, on a date no later than June 3, 2046, and to pay interest on
said principal sum from June 3, 1997, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year commencing June 30, 1997, at the rate of 8.10% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Debt Security is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or
13
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debt Security or one or more
Predecessor Securities is registered at the close of business on the Regular
Record Date for such interest installment, which shall be the close of business
on the Business Day next preceding such Interest Payment Date [**IF PURSUANT TO
THE PROVISIONS OF THE INDENTURE THE DEBT SECURITIES ARE NO LONGER REPRESENTED BY
A GLOBAL SECURITY [**OR IF THE PROPERTY TRUSTEE IS NOT THE HOLDER] - which shall
be the close of business on the Business Day next preceding such Interest
Payment Date.] Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holders on
such Regular Record Date and may be paid to the Person in whose name this Debt
Security or one or more Predecessor Securities is registered at the close of
business on a Special Record Date to be fixed by the Trustee for the payment of
such Defaulted Interest, notice whereof shall be given to the registered Holders
of this series of Debt Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Debt
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. The principal of
and the interest on this Debt Security shall be payable at the office or agency
of the Trustee maintained for that purpose in Wilmington, Delaware in any coin
or currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
-------- -------
option of the Company payment of interest may be made by check mailed to the
registered Holder at such address as shall appear in the Security Register or by
wire transfer to such account as may have been appropriately designated by such
Holder. Notwithstanding the foregoing, so long as the Holder of this Debt
Security is the Property Trustee, the payment of the principal of and interest
on this Debt Security will be made at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Debt Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt and shall be pari passu with all Trust
Related Securities (defined to mean the obligations evidenced by debt securities
(and guaranties in respect of those debt securities) initially issued to any
trust, or trustee of a trust, partnership or other entity affiliated with the
Company that is, directly or indirectly, a financing vehicle of the Company in
connection with the issuance by such entity of preferred securities or other
similar securities), and this Debt Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Debt Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided, and (c) appoints the Trustee his or her attorney-in-fact for any
and all such purposes. Each Holder hereof, by his or her acceptance hereof,
hereby waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Debt, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
14
This Debt Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose, until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Debt Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: June 3, 1997
RELIASTAR FINANCIAL CORP.
By___________________________________________
Attest:
By ____________________________
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series of Debt Securities
described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY, or ____________________________
not in its individual capacity but solely as Authentication Agent
as Trustee
By _______________________ By ______________________
Authorized Signatory Authorized Signatory
15
(FORM OF REVERSE OF NOTE)
This Debt Security is one of a duly authorized series of debt securities of
the Company (herein sometimes referred to as the "Debt Securities"), specified
in the Indenture, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of March 29, 1996, duly executed and delivered
between the Company and Wilmington Trust Company, as Trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture dated as of March 29, 1996 and
the Second Supplemental Indenture dated as of June 3, 1997, between the Company
and the Trustee (as so supplemented, the "Indenture"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Debt Securities.
By the terms of the Indenture, the Debt Securities are issuable in series that
may vary as to amount, date of maturity, rate of interest and in other respects
as provided in the Indenture. This Debt Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$128,865,979.40.
The Maturity Date of this Debt Security will be June 3, 2027, provided that
the Company may at its option at any time prior to such date extend the Maturity
Date to a date not later than June 3, 2046; provided, however, that at the time
-------- -------
such election is made and at the effective time of such extension (as specified
by the Company) (i) the Company is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Company is not in default in the payment of any interest
or principal on the Debt Securities of this series, and (iii) in the case of
Debt Securities of this series held by the Trust, the Trust is not in arrears of
payments of Distributions on the Preferred Securities, and no deferred
Distributions on the Preferred Securities are accumulated. In the event the
Company elects to extend the stated maturity of the Debt Securities of this
series, it shall give notice of any such change to the Trustee, and the Trustee
shall give notice of such extension to the Holders of the Debt Securities of
this series, not more than 90 and not less than 30 days prior to the effective
time of such extension.
Upon the occurrence and continuation of a Tax Event, in certain
circumstances, this Debt Security will become due and payable at a price equal
to 100% of the principal amount hereof plus any accrued but unpaid interest to
the Redemption Date (the "Redemption Price"). The Redemption Price shall be
paid prior to 12:00 noon, New York time, on the Redemption Date or at such
earlier time as the Company determines. The Company shall also have the right
to redeem this Debt Security at the option of the Company, without premium or
penalty, in whole or in part at any time on or after June 3, 2002 (an "Optional
Redemption") or at any time in certain circumstances upon the occurrence of a
Tax Event, at the Redemption Price. Any redemption pursuant to this paragraph
will be made upon not less than 30 nor more than 60 days notice at the
Redemption Price. If the Debt Securities of this series are only partially
redeemed by the Company pursuant to an Optional Redemption, the Debt Securities
of this series will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided, however, that if, at the time of redemption,
-------- -------
the Debt Securities of this series are
16
registered as a Global Security, the Depositary shall determine the principal
amount of such Debt Securities credited to each of its participant accounts to
be redeemed.
In the event of redemption of this Debt Security in part only, a new Debt
Security or Debt Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default shall have occurred and be continuing, the
principal of all of the Debt Securities of this series may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of Outstanding Debt Securities of each series affected, to
execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Debt Securities; provided, however, that no such supplemental
-------- -------
indenture shall without the consent of the Holder of each Debt Security affected
thereby, (i) change the Stated Maturity of the principal or any installment of
principal or any installment of interest (other than as contemplated herein);
(ii) reduce the amount of principal or interest thereon, or any premium payable
upon redemption or repayment thereof; (iii) change the Place of Payment or the
currency in which principal or any interest is payable; (iv) impair the right to
institute suit for the enforcement of any payment of the principal and any
premium and interest, or adversely affect the right of any repayment at the
option of the Holder; (v) reduce the percentage in principal amount of Debt
Securities the consent of whose Holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults; (vi) reduce the requirements
contained in the Indenture for quorum or voting; or (vii) modify any of the
above provisions; provided, further, that if the Debt Securities of this series
-------- -------
are held by the Trust or a trustee of the Trust, a supplemental indenture shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities shall have consented to such supplemental indenture; provided,
further, that if the consent of the Holder of each Outstanding Debt Security is
required in connection with a supplemental indenture, such supplemental
indenture shall not be effective until each holder of the Trust Securities shall
have consented to such supplemental indenture. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Outstanding Debt Securities of any series affected thereby, on behalf of all of
the Holders of the Outstanding Debt Securities of such series, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture with respect to such series, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest on any of the Debt Securities of such series; provided,
--------
however, that if the Debt Securities of this series are held by the Trust or a
-------
trustee of the Trust, a waiver of a past default or any modification to a waiver
of a past
17
default shall not be effective until the holders of a majority in liquidation
preference of Trust Securities shall have consented to such waiver or
modification; provided, further, that if the consent of the Holder of each
-------- -------
Outstanding Debt Security is required in connection with such waiver or
modification, such waiver or modification shall not be effective until each
holder of the Trust Securities shall have consented to such waiver or
modification. Any such consent or waiver by the registered Holder of this Debt
Security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Debt
Security and of any Debt Security issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this Debt
Security at the time and place and at the rate and in the money herein
prescribed.
The Company shall have the right at any time during the term of this Debt
Security from time to time to extend the interest payment period of this Debt
Security to up to 20 consecutive quarters (an "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for
this Debt Security herein to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment Period, the Company may further extend such Extended Interest
Payment Period, provided that such Extended Interest Payment Period together
with all such further extensions thereof shall not exceed 20 consecutive
quarters. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debt Security is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debt Security for
registration of transfer at the office or agency of the Company in Wilmington,
Delaware accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debt Securities of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Company, the Trustee, any Paying Agent and any Security Registrar
may deem and treat the
18
registered Holder hereof as the absolute owner hereof (whether or not this Debt
Security shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any Paying Agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debt Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or the Trustee or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
[**IF A GLOBAL SECURITY -- This Debt Security is exchangeable for Debt
Securities in definitive form only under certain limited circumstances set forth
in the Indenture.] Debt Securities of this series so issued are issuable only
in registered form without coupons in denominations of $25 and any integral
multiple thereof as provided in the Indenture and subject to certain limitations
herein and therein set forth. Debt Securities of this series so issued are
exchangeable for a like aggregate principal amount of Debt Securities of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
All terms used in this Debt Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF NOTES
Section 9.1 Original Issue of Notes.
Notes in the aggregate principal amount of $128,865,979.40 may, upon
execution of this Second Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes upon Company Order.
19
Section 9.2 Reports by the Trustee.
Up until and including the Maturity Date, the Trustee shall, in respect of
each Reporting Date, make such reports, and within such time periods, as are
required to be made by the Trustee under the Trust Indenture Act.
ARTICLE X
LIMITATION ON WAIVERS AND CONSENTS
Notwithstanding anything to the contrary contained in Section 513 of the
Indenture, if the Notes are held by the Trust or a trustee of the Trust, a
waiver of a past default or any modification to a waiver of a past default shall
not be effective until the holders of a majority in liquidation preference of
Trust Securities shall have consented to such waiver or modification; provided,
--------
however, that if the consent of the Holder of each Note Outstanding is required
-------
in connection with such waiver or modification, such waiver or modification
shall not be effective until each holder of the Trust Securities shall have
consented to such waiver or modification.
Notwithstanding anything to the contrary contained in Section 902 of the
Indenture, if the Notes are held by the Trust or a trustee of the Trust, a
supplemental indenture shall not be effective until the holders of a majority in
liquidation preference of Trust Securities shall have consented to such
supplemental indenture; provided, however, that if the consent of the Holder of
each Note Outstanding is required in connection with a supplemental indenture,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Ratification of Indenture.
The Indenture, as supplemented by this Second Supplemental Indenture, is in
all respects ratified and confirmed, and this Second Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 11.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
20
Section 11.3 Governing Law.
This Second Supplemental Indenture and each Note shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
Section 11.4 Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 11.5 Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11.6 Third Party Beneficiaries.
The Property Trustee, the trustee under the Preferred Securities Guarantee
and the Delaware Trustee are each a third party beneficiary of, and shall be
entitled to enforce and to exercise all rights and remedies with respect to, the
provisions of Article V. Each of the holders of Preferred Securities is a third
party beneficiary of, and shall be entitled to enforce and to exercise all
rights and remedies with respect to, the provisions of Section 6.2(c).
21
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
RELIASTAR FINANCIAL CORP.
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Attest:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Secretary
WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Trustee
By /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------------
Attest:
/s/ Xxxxxx X. XxxXxxxxx
--------------------------------------
Secretary
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the 3rd day of June, 1997, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being duly sworn, did depose and say that he resides
at Minneapolis, Minnesota; that he is a Senior Vice President, General Counsel
and Secretary of ReliaStar Financial Corp., a corporation described in and which
executed the above instrument; that he knows the seal of said corporation; that
it was so affixed pursuant to the authority of the Board of Directors of said
corporation; and that he signed his name thereto pursuant to like authority.
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------------
Notary Public
Xxxxxx X. Xxxxxx
Notary Public
My Commission Expres: January 31, 0000
XXXXX XX XXXXXXXX )
)SS.
COUNTY OF NEW CASTLE )
On the 2nd day of June, 1997, before me personally came Xxxxxx X.,
MacKelcan, to me known, who, being duly sworn, did depose and say that he
resides at Wilmington, Delaware; that he is an Assistant Vice President of
Wilmington Trust Company, a Delaware banking corporation described in and which
executed the above instrument; that he knows the seal of said corporation; that
it was so affixed pursuant to the authority of the Board of Directors of said
corporation; and that he signed his name thereto pursuant to like authority.
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------------------------
Notary Public
Xxxxxxxx X. Xxxxxxxx
Notary Public
My Commission Expres: October 31, 1998
