Exhibit 4.1
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CINCINNATI FINANCIAL CORPORATION
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
___________
INDENTURE
Dated as of _________________, 1998
___________
____% Debentures due 2028
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TABLE OF CONTENTS*
Page
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Parties.................................................................... 1
Recitals................................................................... 1
ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions.................................................. 1
Affiliate.............................................. 1
Authenticating Agent................................... 2
Board of Directors..................................... 2
Board Resolution....................................... 2
Business Day........................................... 2
Company................................................ 2
Company Request and Company Order...................... 2
Consolidated Net Worth................................. 2
Depository............................................. 2
Designated Subsidiary.................................. 2
Dollar................................................. 2
Event of Default....................................... 3
Global Security........................................ 3
Government Obligations................................. 3
Holder................................................. 3
Indebtedness........................................... 3
Indenture.............................................. 3
Interest............................................... 3
Interest Payment Date.................................. 3
Issue Date............................................. 3
Officers' Certificate.................................. 3
Opinion of Counsel..................................... 4
Outstanding............................................ 4
Paying Agent........................................... 5
Person................................................. 5
Place of Payment....................................... 5
Predecessor Security................................... 5
Principal Office of the Trustee........................ 5
Public Notice.......................................... 5
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* This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Page
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Regular Record Date.................................... 5
Responsible Officer.................................... 5
Security or Securities................................. 6
Security Custodian..................................... 6
Security Register...................................... 6
Special Record Date.................................... 6
Stated Maturity........................................ 6
Subsidiary............................................. 6
Trust Indenture Act of 1939............................ 6
Trustee................................................ 6
Voting Stock........................................... 6
ARTICLE TWO.
Security Forms.
SECTION 2.01. Forms Generally.............................................. 6
SECTION 2.02. Form of Face of Security..................................... 7
SECTION 2.03. Form of Reverse of Security.................................. 9
SECTION 2.04. Form of Trustee's Certificate of Authentication.............. 13
SECTION 2.05. Securities in Global Form.................................... 13
ARTICLE THREE.
The Securities.
SECTION 3.01. Title and Term............................................... 15
SECTION 3.02. Denominations................................................ 15
SECTION 3.03. Payment of Principal and Interest............................ 15
SECTION 3.04. Execution of Securities...................................... 16
SECTION 3.05. Temporary Securities......................................... 17
SECTION 3.06. Exchange and Registration of Transfer of Securities.......... 18
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Securities.............. 19
SECTION 3.08. Payment of Interest; Interest Rights Preserved............... 20
SECTION 3.09. Persons Deemed Owners........................................ 21
SECTION 3.10. Cancellation of Securities Paid, etc......................... 21
ARTICLE FOUR.
[Intentionally Left Blank]
ARTICLE FIVE.
Particular Covenants of the Company
PAGE
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SECTION 5.01. Payment of Principal, Premium and Interest..................... 22
SECTION 5.02. Offices for Notices and Payments, etc.......................... 22
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office............. 22
SECTION 5.04. Provisions as to Paying Agent.................................. 22
SECTION 5.05. Limitations on Liens on Stock of Subsidiaries.................. 23
SECTION 5.06. Limitations on Disposition of Stock of Designated Subsidiaries. 24
SECTION 5.07. Certificate to Trustee......................................... 24
SECTION 5.08. Waivers of Covenants........................................... 24
ARTICLE SIX.
Holders' Lists and Reports by the Company and the Trustee.
SECTION 6.01. Holders' Lists................................................. 25
SECTION 6.02. Preservation and Disclosure of Lists........................... 25
SECTION 6.03. Reports by the Company......................................... 25
SECTION 6.04. Reports by the Trustee......................................... 25
ARTICLE SEVEN.
Remedies of the Trustee and Holders on Event of Default.
SECTION 7.01. Events of Default.............................................. 26
SECTION 7.02. Payment of Securities Upon Default; Suit Therefor.............. 28
SECTION 7.03. Application of Moneys Collected by Trustee..................... 30
SECTION 7.04. Proceedings by Holders......................................... 31
SECTION 7.05. Proceedings by Trustee......................................... 31
SECTION 7.06. Remedies Cumulative and Continuing............................. 32
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders........................................ 32
SECTION 7.08. Notice of Defaults............................................. 33
SECTION 7.09. Undertaking to Pay Costs....................................... 33
SECTION 7.10. Unconditional Right of Holders to Receive Principal
Premium and Interest....................................... 33
ARTICLE EIGHT.
Concerning the Trustee.
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PAGE
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SECTION 8.01. Duties and Responsibilities of Trustee........................ 33
SECTION 8.02. Reliance on Documents, Opinions, etc.......................... 34
SECTION 8.03. No Responsibility for Recitals, etc........................... 35
SECTION 8.04. Trustee and Agents May Own Securities......................... 35
SECTION 8.05. Moneys to be Held in Trust.................................... 35
SECTION 8.06. Compensation and Expenses of Trustee.......................... 35
SECTION 8.07. Officers' Certificate as Evidence............................. 36
SECTION 8.08. Conflicting Interest of Trustee............................... 36
SECTION 8.09. Eligibility of Trustee........................................ 36
SECTION 8.10. Resignation or Removal of Trustee............................. 37
SECTION 8.11. Acceptance by Successor Trustee............................... 38
SECTION 8.12. Succession by Merger, etc..................................... 38
SECTION 8.13. Limitation on Rights of Trustee as a Creditor................. 39
SECTION 8.14. Authenticating Agents......................................... 39
ARTICLE NINE.
Concerning the Holders.
SECTION 9.01. Action by Holders............................................. 42
SECTION 9.02. Proof of Execution by Holders................................. 42
SECTION 9.03. Who Are Deemed Absolute Owners................................ 42
SECTION 9.04. Company-Owned Securities Disregarded.......................... 43
SECTION 9.05. Revocation of Consents; Future Holders Bound.................. 43
ARTICLE TEN.
[Intentionally Left Blank]
ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01. Supplemental Indentures without Consent of Holders........... 44
SECTION 11.02. Supplemental Indentures with Consent of Holders.............. 45
SECTION 11.03. Effect of Supplemental Indentures............................ 46
SECTION 11.04. Notation on Securities....................................... 46
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee......................................... 46
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PAGE
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ARTICLE TWELVE.
Consolidation, Merger, Sale and Conveyance.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms.............. 46
SECTION 12.02. Successor Corporation to be Substituted...................... 47
SECTION 12.03. Opinion of Counsel to Be Given Trustee....................... 48
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture.
SECTION 13.01. Satisfaction, Discharge and Defeasance of the Securities..... 48
SECTION 13.02. Defeasance of the Securities................................. 49
SECTION 13.03. Application of Trust Funds; Indemnification.................. 50
SECTION 13.04. Return of Unclaimed Moneys................................... 51
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders, Officers and Directors.
SECTION 14.01. Indenture and Securities Solely Corporate Obligations........ 51
ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Provisions Binding on Successors of the Company.............. 52
SECTION 15.02 Indenture for Sole Benefit of Parties and Holders of the
Securities................................................. 52
SECTION 15.03 Addresses for Notices, etc................................... 52
SECTION 15.04. New York Contract............................................ 53
SECTION 15.05. Evidence of Compliance with Conditions Precedent............. 53
SECTION 15.06. Legal Holidays............................................... 53
SECTION 15.07. Trust Indenture Act of 1939 to Control....................... 53
SECTION 15.08. Table of Contents, Headings, etc............................. 54
SECTION 15.09. Execution in Counterparts.................................... 54
Signatures................................................................... 55
Acknowledgments.............................................................. 55
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CROSS REFERENCE SHEET**
Provisions of Sections 310 through 318(a) inclusive of Trust Indenture
Act of 1939 and the Indenture dated as of _________________, 1998 between
Cincinnati Financial Corporation and The First National Bank of Chicago, as
Trustee.
Section of Act Section of Indenture
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310(a)(1) and (2)........................................ 8.09
310(a)(3) and (4)........................................ *
310(b)................................................... 8.08 and 8.10
310(c)................................................... *
311(a)................................................... 8.13(a)
311(b)................................................... 8.13(b)
311(c)................................................... *
312(a)................................................... 6.01 and 6.02(a)
312(b)................................................... 6.02(b)
312(c)................................................... 6.02(c)
313(a)(1), (2), (3), (4), (6) and (7).................... 6.04(a)(1-6)
313(a)(5)................................................ *
313(b)(1)................................................ *
313(b)(2)................................................ 6.04(b)
313(c)................................................... 6.04(c)
313(d)................................................... 6.04(d)
314(a)(1)................................................ 6.03(a)
314(a)(2)................................................ 6.03(b)
314(a)(3)................................................ 6.03(c)
314(b)................................................... *
314(c)(1)................................................ 15.05
314(c)(2)................................................ 15.05
314(c)(3)................................................ *
314(d)................................................... *
314(e)................................................... 15.05
314(f)................................................... *
315(a), (c) and (d)...................................... 8.01
315(b)................................................... 7.08
315(e)................................................... 7.09
316(a)(1)................................................ 7.07
316(a)(2)................................................ *
316(a) last para......................................... 9.04
316(b)................................................... 7.10
317(a)................................................... 7.02
317(b)................................................... 5.04
318(a)................................................... 15.07
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* Not applicable.
** This cross reference sheet shall not, for any purpose, be deemed to be part
of the Indenture.
THIS INDENTURE, dated as of ___________________, 1998, between
Cincinnati Financial Corporation, an Ohio corporation (the "Company"), and The
First National Bank of Chicago, a national banking association, as trustee (the
"Trustee") .
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issue of $350,000,000 aggregate principal amount of
its ___% Debentures due _____________, 2028 (the "Securities").
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or
acceptance of the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of the respective Holders as
follows:
ARTICLE ONE
Definitions
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein 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 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933,
as amended, shall have (except as herein otherwise expressly provided or unless
the context otherwise requires) the meanings assigned to such terms in said
Trust Indenture Act of 1939 and in said Securities Act as in force at the date
of the execution of this Indenture. All accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation. All references to such terms
herein shall be both to the singular or the plural, as the context so requires.
"Affiliate", when used with respect to any specified Person, means any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means the agent of the Trustee, if any, which
at the time shall be appointed and acting pursuant to Section 8.14.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee of such Board designated by the Board of Directors or
the by-laws or the articles of incorporation of the Company to act for such
Board for purposes of this Indenture.
"Board Resolution" means a copy of a resolution certified by a Vice
President, the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Company" means Cincinnati Financial Corporation, an Ohio corporation,
and, subject to Article Twelve, shall include its successors and assigns.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
Vice Chairman of the Board, President or a Vice President, and by its Treasurer,
Secretary, Assistant Secretary or Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Net Worth" means the Company's assets minus liabilities,
determined on a consolidated basis in accordance with GAAP, as of the end of the
most recent fiscal quarter of the Company ending prior to the taking of any
action for the purpose of which the determination is being made.
"Depository" means The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation.
"Designated Subsidiary" means any present or future consolidated
subsidiary of the Company, the Consolidated Net Worth of which constitutes at
least 10% of the Consolidated Net Worth of the Company.
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
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"Event of Default" means any event specified in Section 7.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Global Security" means a Security issued to evidence all or part of
the Securities.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America 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 obligations is unconditionally
guaranteed by such government, and which, in either case, are full faith and
credit obligations of the United States of America, are denominated in United
States dollars and which are not callable or redeemable at the option of the
issuer thereof.
"Holder" means any Person in whose name a Security is registered in
the Security Register applicable to the Securities.
"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 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 or, if
amended or supplemented as herein provided, as so amended or supplemented,
pursuant to the applicable provisions hereof.
"Interest Payment Date", when used with respect to the Securities,
means the Stated Maturity of an installment of interest on such Securities.
"Issue Date" means ______, 1998.
"Officers' Certificate", when used with respect to the Company, means
a certificate signed by its Chairman of the Board, Vice Chairman of the Board,
President, or a Vice
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President and by its Treasurer, Secretary, Assistant Secretary or Assistant
Treasurer and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 15.05 to the extent required by the
provisions of such Section.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Company, and who shall be
reasonably acceptable to the Trustee. Each such opinion shall include the
statements provided for in Section 3.04 and Section 15.05 to the extent required
by the provisions of such Sections.
"Outstanding", when used with respect to the Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any paying
agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent) for the Holders of such Securities;
(iii) such Securities in exchange for or in lieu of which other
such Securities have been authenticated and delivered pursuant to this
Indenture, or such Securities which have been paid, pursuant to this
Indenture, unless proof satisfactory to the Trustee is presented that
any such Securities are held by Persons in whose hands any of such
Securities are a legal, valid and binding obligation of the Company,
and
(iv) such Securities the indebtedness in respect to which has
been discharged in accordance with Section 13.02.
provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, such Securities
owned by the Company or such other obligor upon such Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only such Securities which the Trustee knows to be so owned
shall be so disregarded. Such 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 such obligor
upon such Securities or any Affiliate of the Company or such other obligor. In
case of a dispute as to such right, the decision of the Trustee upon the advice
of counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying
4
all such Securities, if any, known by the Company to be owned or held by or for
the account of any of the above described Persons; and, subject to the
provisions of Section 8.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all such Securities not listed therein are Outstanding for the
purpose of any such determination.
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities, means
the place or places where the principal of (premium, if any) and interest on the
Securities are payable as specified in accordance with Section 3.01.
"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 3.07 in lieu of a mutilated, lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security.
"principal office of the Trustee", or other similar terms, means the
principal office of the Trustee in Chicago, Illinois, at which at any particular
time its corporate trust business shall be administered, which office on the
date hereof is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000.
"Public Notice" shall, without limitation, include any filing or
report made in accordance with the requirements of the Securities and Exchange
Commission or any press release or public announcement made by the Company.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the "Regular
Record Date" as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters.
5
"Security" or "Securities" means a __% Debenture due 2028 or __%
Debentures due 2028 issued under this Indenture.
"Security Custodian" means the Trustee, as custodian with respect to
the Global Securities, or any successor entity thereto.
"Security Register" shall have the meaning set forth in Section 3.06.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 3.08) means a date fixed by the Trustee pursuant to Section
3.08.
"Stated Maturity" when used with respect to any Security or any
instalment of principal thereof or of interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such instalment of interest, is due and payable.
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own more than 50% of the Voting Stock.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act of 1939" means to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means The First National Bank of Chicago and, subject to the
provisions of Article Eight hereof, shall also include its successors and
assigns as Trustee hereunder.
"Voting Stock" means outstanding shares of capital stock having under
ordinary circumstances voting power for the election of directors whether at all
times or only so long as no senior class of stock has such voting power by
reason of the happening of any contingency.
ARTICLE TWO
Security Forms
SECTION 2.01. Forms Generally. The Securities and the Trustee's
certificates of authentication shall be in substantially the form set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with law or the rules
of
6
any securities exchange, the Securities Act, or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The Definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities. The Definitive Securities shall be substantially in the form set
forth in this Article, but without including the text referred to in Section
2.05.
Global Securities shall be substantially in the form set forth in this
Article, including the text referred to in Section 2.05. Each Global Security
shall represent such of the Outstanding Securities as shall be specified therein
and each shall provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Security to reflect the amount of any increase or
decrease in the amount of Outstanding Securities represented thereby shall be
made by the Trustee or the Security Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as required by
Section 3.06 hereof.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
SECTION 2.02. Form of Face of Security.
No. R-1 CUSIP NO.
$350,000,000
CINCINNATI FINANCIAL CORPORATION
___% Debentures due 2028
CINCINNATI FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of Ohio (herein called the "Company", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, the
principal sum of THREE HUNDRED FIFTY MILLION DOLLARS ($350,000,000) on
_________, 2028, and to pay interest thereon from _______, 1998, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually in arrears on _____ and _____ in each year commencing
_______, 1998, at the rate of ____% per annum, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
7
Indenture, be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _____ or _____ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date;
provided, however, that interest at Stated Maturity will be payable to the
Person to whom principal shall be payable. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture. Payment of the principal of and interest on this Security
will be made at the office or agency of the Company maintained for that purpose
in Chicago, Illinois or the Borough of Manhattan, The City of New York, which,
subject to the right of the Company to vary or terminate the appointment of such
agency, shall initially be the principal office of the Trustee, in such coin or
currency of the United States of America as 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
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the [reverse hereof][pages following the certificate of
authentication hereon], which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below, directly or through an Authenticating Agent, by
manual signature of an authorized officer, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: CINCINNATI FINANCIAL CORPORATION
By:
--------------------------------
Title:
Attest:
8
SECTION 2.03. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _______, 1998 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the Securities of the
series designated herein, limited in aggregate principal amount to $350,000,000.
This Security is not redeemable at the option of the Company. This
Security is not subject to any sinking fund.
As provided in the Indenture, defeasance may occur at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of greater than 50% in principal amount of the Securities
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to such Security, the Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the
9
Holders of a majority in principal amount of the Outstanding Securities a
direction inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of or interest on this Security on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this 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
Security at the times, places, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender for registration of transfer at the office or agency of
the Company maintained for that purpose in Chicago, Illinois or the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in global or
definitive registered form, without coupons, in denominations of $1,000 and
integral multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth and to the limitations described below, if
applicable, Securities are exchangeable at the office or agency of the Company
for a like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
[This Security is exchangeable only if (x) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for this global
Security or if at any time the Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (y) the
Company in its sole discretion determines that this Security shall be
exchangeable for definitive Securities in registered form or (z) an Event of
Default, or an event which with the passage of time or the giving of notice
would become an Event of Default, with respect to the Securities represented
hereby has occurred and is continuing, provided that the definitive Securities
so issued in exchange for this permanent global Security shall be in
denominations of $1,000 and integral multiples thereof and be of like aggregate
principal amount and tenor as the portion of this permanent global Security to
be exchanged, and provided further that, unless the Company agrees otherwise,
Securities of this series in definitive registered form will be issued in
exchange for this permanent global Security, or any portion hereof, only if such
Securities in definitive registered form were requested by written notice to the
Trustee or the Security Registrar by or on behalf of a Person who is beneficial
owner of an interest hereof given through the Holder hereof. Except as provided
above, owners of beneficial interests in this permanent global Security will not
be entitled to receive
10
physical delivery of Securities in definitive registered form and will not be
considered the Holders thereof for any purpose under the Indenture.]
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
--------------
11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -...............................Custodian...................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
..............................................
(State)
Additional abbreviations may also be used though not in the above list.
----------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------
-------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
--------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ______________________attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
Dated:
___________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
12
SECTION 2.04. Form of Trustee's Certificate of Authentication. The
following is the form of the Certificate of Authentication of the Trustee to be
endorsed on the face of all Securities substantially as follows:
This is one of the Securities issued under the within-mentioned
Indenture.
The First National Bank of Chicago
as Trustee
By
-------------------------------------------
Authorized Officer
SECTION 2.05. Securities in Global Form. (a) Except as set forth in
paragraph (c) below, the Global Securities (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
Outstanding Securities, (ii) shall be registered in the name of the Depository
or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depository or pursuant to the Depository's instruction and (iv) shall bear a
legend substantially to the following effect:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX)
("XXX"), 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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
13
In addition, the reverse of each Global Security shall have attached
to it a Schedule in the following form:
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES
The following exchanges of a part of this Global Security for
Definitive Security have been made:
Principal Amount of this Signature of
Amount of decrease in Amount of increase in Global Security authorized officer
Principal Amount of Principal Amount of following such decrease of Trustee or
Date of Exchange this Global Security this Global Security (or increase) Security Custodian
-------- --------------------- --------------------- ------------------------- ------------------
(b) Notwithstanding any other provision of this Section 2.04 or of
Section 3.06, and subject to the provisions of paragraph (c) below, the Global
Security may be transferred, in whole but not in part and in the manner provided
in Section 3.06, only to a nominee of the Depository, to the Depository, or a
successor Depository selected or approved by the Company, or to a nominee of
such successor Depository.
(c) (1) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depository. If a successor Depository is not appointed
by the Company within 90 days after the Company receives notice or becomes aware
of such ineligibility, the Company will execute, and the Trustee or its agent,
upon receipt of a Company Request for the authentication and delivery of
certificates representing Securities in exchange for the Global Securities, will
authenticate and deliver, certificates representing the Securities in exchange
for the Global Securities.
(2) The Company may at any time and in its sole discretion determine that
the Securities or a portion thereof shall no longer be represented by the Global
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of certificates
representing Securities in exchange in whole or in part for such Global
Securities, will authenticate and deliver certificates representing Securities
of like tenor and terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or Global Securities or
portion thereof in exchange for such Global Security or Global Securities.
(3) In any exchange provided for in any of the preceding two paragraphs,
the Company will execute and the Trustee or its agent will authenticate and
deliver certificates representing Securities in definitive registered form in
authorized denominations for Securities of any integral multiple thereof. Upon
the exchange of the entire principal amount of a Global Security for
certificates
14
representing Securities, such Global Security shall be canceled by the Trustee
or its agent. Except as provided in the preceding paragraph, certificates
representing Securities issued in exchange for a Global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations for Securities of any integral multiple thereof, as the Security
Registrar or Depository shall instruct the Trustee or its agent. The Trustee or
the Security Registrar shall deliver at its Corporate Trust Office such
certificates representing Securities to the Holders in whose names such
Securities are so registered.
ARTICLE THREE
The Securities
SECTION 3.01. Title and Term. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
$350,000,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Sections 3.05, 3.06, 3.07 or 11.04.
All Securities which shall be issued and authenticated shall be
designated as the "__% Debentures due 2028" of the Company. Their Stated
Maturity shall be _______, 2028 and they shall bear interest at the rate of ___%
per annum from the Issue Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually on each Interest Payment Date commencing _____, 1998, until the
principal thereof is paid or made available for payment.
The principal of (and premium, if any) and any interest on the
Securities shall be payable at the office or agency of the Company in the City
of Chicago, the City of Cincinnati or the Borough of Manhattan, City of New
York, maintained for such purpose and at any other office or agency maintained
by the Company for such purpose; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register.
The Securities are not subject to redemption. The Securities are not
subject to any sinking fund.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Thirteen.
SECTION 3.02. Denominations. The Securities shall be issuable in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.
SECTION 3.03. Payment of Principal and Interest. The principal of,
premium, if any, and interest on the Securities shall be payable at the office
or agency of the Company designated for that
15
purpose in the Place of Payment, as provided in Section 5.02; provided, however,
that interest may be payable at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register on the record date for such interest payment. Interest on the
Securities will be payable semiannually in arrears on _________ and ________ of
each year, commencing _________, 1998.
SECTION 3.04. Execution of Securities. The Securities shall be
executed manually or by facsimile in the name and on behalf of the Company by
its Chairman of the Board of Directors, its President, one of its Vice
Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise). Only such Securities
as shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, manually executed by the Trustee, shall be entitled to the
benefits of this Indenture or be valid or become obligatory for any purpose.
Such certificate by the Trustee upon any Security executed by the Company shall
be conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have executed any of the
Securities shall cease to be such officer before the Securities so executed
shall have been authenticated and delivered by the Trustee, or disposed of by
the Company, such Securities nevertheless shall be valid and binding and may be
authenticated and delivered or disposed of as though the Person who executed
such Securities had not ceased to be such officer of the Company; and any
Securities may be executed on behalf of the Company by such Persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of such Security or of the execution of this
Indenture any such Person was not such an officer.
In the event that any other Person performs the Trustee's duties as
Authenticating Agent pursuant to a duly executed agreement, the Company shall
notify the Trustee in writing of the issuance of any Securities hereunder, such
notice to be delivered in accordance with the provisions of Section 15.03 on the
date such Securities are delivered by the Company for authentication to such
other Person.
Prior to the authentication and delivery of the Securities, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, in addition to the Opinion of Counsel to be furnished to the Trustee
pursuant to Section 15.05 and the Officers' Certificate relating to the issuance
of Securities pursuant to Section 15.05, Opinions of Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture, if any, have
been complied with, the execution and delivery
16
of the supplemental indenture, if any, will not violate the terms of
this Indenture, the supplemental indenture has been duly qualified
under the Trust Indenture Act of 1939, the Company has corporate power
to execute and deliver any such supplemental indenture and has taken
all necessary corporate action for those purposes and any such
supplemental indenture has been executed and delivered and constitutes
the legal, valid and binding obligation of the Company enforceable in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in
effect);
(3) the form and terms of such Securities comply with the
provisions of this Indenture;
(4) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with,
the authentication and delivery of the Securities by the Trustee will
not violate the terms of this Indenture, the Company has the corporate
power to issue such Securities and such Securities, assuming due
authentication and delivery by the Trustee, constitute legal, valid
and binding obligations of the Company in accordance with their terms
and are entitled to the benefits of this Indenture; and
(5) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee or such action would expose
the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Security, all Securities
shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.05. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon receipt of the
documents required by Sections 2.02 and 3.04, together with a Company Order, the
Trustee shall authenticate and deliver, such temporary Securities which may be
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denominations, substantially of the tenor of such definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such temporary Securities may determine, as evidenced by their
execution of such temporary Securities.
17
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities, upon surrender of the temporary Securities at any office
or agency maintained by the Company for such purposes as provided in Section
5.02, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefore a like principal amount of
definitive Securities having the same interest rate and Stated Maturity and
bearing interest from the same date of any authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 3.06. Exchange and Registration of Transfer of Securities.
Securities may be exchanged for a like aggregate principal amount of Securities
that are of other authorized denominations. Securities to be exchanged shall be
surrendered at any office or agency to be maintained for such purpose by the
Company, as provided in Section 5.02, and the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefore the Security or
Securities of authorized denominations which the Securityholder making the
exchange shall be entitled to receive. Each agent of the Company appointed
pursuant to Section 5.02 as a person authorized to register and register
transfer of Securities is sometimes herein referred to as a "Security
registrar."
The Company shall keep, at each such office or agency of the Company
maintained for such purpose, as provided in Section 5.02, a register hereunder
(the registers of all Security registrars being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and shall register the transfer of Securities as in this Article
Three provided. At all reasonable times, such Security Register shall be open
for inspection by the Trustee and any Security registrar other than the Trustee.
Upon due presentment for registration of transfer of any Security at any such
office or agency, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of authorized denominations for an equal aggregate
principal amount. Registration or registration of transfer of any Security by
any Security registrar in the registry books maintained by such Security
registrar, and delivery of such Security, duly authenticated, shall be deemed to
complete the registration or registration of transfer of such Security.
The Company will at all times designate one Person (who may be the
Company and who need not be a Security registrar) to act as repository of a
master list of names and addresses of Holders of the Securities. The Trustee
shall act as such repository unless and until some other Person is, by written
notice from the Company to the Trustee and each Security registrar, designated
by the Company to act as such. The Company shall cause each Security registrar
to furnish to such repository, on a current basis, such information as such
repository may reasonably request as to registrations, transfers, exchanges and
other transactions effected by such registrar, as may be
18
necessary or advisable to enable such repository to maintain such master list on
as current a basis as is reasonably practicable.
No Person shall at any time be appointed as or act as a Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Securities presented to a Security registrar for registration of
transfer shall be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and such Security
registrar duly executed by the registered Holder or his attorney duly authorized
in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
All Securities issued in exchange for or upon registration of transfer
of Securities shall be valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered for such exchange or registration of transfer.
None of the Trustee, any agent of the Trustee, any Paying Agent or the
Company will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 3.07. 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 may execute, and upon its request
the Trustee shall authenticate and deliver, a new Security, bearing a number,
letter or other distinguishing xxxx 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 to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft, of such Security and of the
ownership thereof.
In the absence of notice to the Trustee or the Company that such
Security has been acquired by a bona fide purchaser, the Trustee shall
authenticate any such substituted Security and deliver the same upon any Company
Request. 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 connected
therewith. In case any Security which has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Security, pay or authorize the payment of the same
19
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to save each of them harmless
and, in case of destruction, loss or theft, evidence satisfactory to the Company
and to the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substituted Security issued pursuant to the provisions of this
Section 3.07 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities 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 permitted by law) any and all other rights or remedies with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date, on any Security, shall unless otherwise provided in such Security
be paid to the Person in whose name the Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Interest on the Securities shall be computed on the basis of a 360 day
year comprised of twelve 30 day months.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any 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 on each 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 be not more than 15 days and not less than
20
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 therefore to be mailed, first-class postage
prepaid, to each Holder of such Securities, at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefore 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 no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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 payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.09. Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of, premium, if any, and (subject to Section
3.08) interest on, such Security and for all other purposes whatsoever whether
or not such Security be overdue, and neither the Company, the Trustee, nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.10. Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, exchange or registration of transfer
shall, if surrendered to the Company or any agent of the Trustee or the Company
under this Indenture, be delivered to the Trustee and promptly canceled by it,
or, if surrendered to the Trustee, shall be promptly cancelled by it, and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of cancelled
Securities in accordance with a Company Order.
ARTICLE FOUR
[Intentionally left blank]
21
ARTICLE FIVE
Particular Covenants of the Company
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay or cause to be paid the principal of and premium,
if any, and interest on each of the Securities at the place (subject to Section
3.03), at the respective times and in the manner provided in the Securities and
in this Indenture.
SECTION 5.02. Offices for Notices and Payments, etc. (a) So long as
the Securities remain Outstanding, the Company will maintain at the Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, and an office or agency
where notices and demands to or upon the Company in respect of the Securities or
of this Indenture may be served and shall give the Trustee written notice
thereof and any changes in the location thereof. In case the Company shall at
any time fail to maintain any such office or agency, or shall fail to give
notice to the Trustee of any change in the location thereof, presentation and
demand may be made and notice may be served in respect of the Securities or of
this Indenture at said office of the Trustee.
(b) In addition to the office or agency maintained by the Company
pursuant to Section 5.02(a), the Company may from time to time designate one or
more other offices or agencies where the Securities may be presented for payment
and presented for registration of transfer and for exchange in the manner
provided in this Indenture, and the Company 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 such office and agency at the Place of Payment,
for the purposes above mentioned. The Company will give to the Trustee prompt
written notice of (i) any such designation or rescission thereof, and (ii) the
location of any such office or agency outside the Place of Payment and of any
change of location thereof.
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 5.04. Provisions as to Paying Agent. (a) (1) Whenever the
Company shall have one or more Paying Agents for the Securities other than the
Trustee, it will, on or before each due date of the principal of (and premium,
if any) or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount becoming due, such sum to be held as provided by
the Trust Indenture Act of 1939, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
22
(2) The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will: (i) comply with the provisions of the Trust Indenture
Act of 1939 applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities) in the
making of any payment in respect of the Securities, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
(b) If the Company shall act as its own paying agent, it will, on or
prior to each due date of the principal of and premium, if any, or interest on
the Securities, set aside, segregate and hold in trust for the benefit of the
Holders of such Securities a sum sufficient to pay such principal and premium,
if any, or interest so becoming due and will notify the Trustee of any failure
to take such action and of any failure by the Company (or by any other obligor
on the Securities) to make any payment of the principal of and premium, if any,
or interest on the Securities when the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to the Securities then Outstanding, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust by the Company, or any paying agent hereunder, as required by this Section
5.04, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding,
the agreement to hold sums in trust provided in this Section 5.04 is subject to
Section 13.04.
SECTION 5.05. Limitation on Liens on Stock of Subsidiaries. The
Company will not, and it will not permit any Subsidiary of the Company to, at
any time directly or indirectly create, assume, incur or permit to exist any
Indebtedness secured by a pledge, lien or other encumbrance (any pledge, lien or
other encumbrance being hereinafter in this Section referred to as a "lien") on
the capital stock of any Designated Subsidiary without making effective
provision whereby the Securities then Outstanding (and, if the Company so
elects, any other Indebtedness of the Company that is not subordinate to the
Securities and with respect to which the governing instruments require, or
pursuant to which the Company is otherwise obligated or required, to provide
such security) shall be equally and ratably secured with such secured
Indebtedness so long as such other Indebtedness shall be secured. For purposes
of this Section 5.05 only, "Indebtedness", in addition to those items specified
in Section 1.01 hereof, shall include any obligation of, or any such obligation
guaranteed by, any Person for the payment of amounts due under a swap agreement
or other similar instrument or agreement or foreign currency hedge exchange or
similar instrument or agreement.
If the Company shall hereafter be required to secure the Securities
equally and ratably with any other Indebtedness pursuant to this Section, (i)
the Company will promptly deliver to the Trustee an Officers' Certificate
stating that the foregoing covenant has been complied with, and an Opinion of
Counsel stating that in the opinion of such counsel the foregoing covenant has
been complied with
23
and that any instruments executed by the Company or any Subsidiary of the
Company in the performance of the foregoing covenant comply with the
requirements of the foregoing covenant and (ii) the Trustee is hereby authorized
to enter into an indenture or agreement supplemental hereto and to take such
action, if any, as it may deem advisable to enable it to enforce the rights of
the holders of the Securities so secured.
SECTION 5.06. Limitations on Disposition of Stock of Designated
Subsidiaries. Except in a transaction governed by Article Twelve hereof, so long
as Securities are Outstanding, the Company will not issue, sell, transfer or
otherwise dispose of any shares of, securities convertible into or warrants,
rights or options to subscribe for or purchase shares of, capital stock (other
than preferred stock having no voting rights of any kind) of any Designated
Subsidiary, nor will it permit any Designated Subsidiary to issue (other than to
the Company) any shares (other than directors' qualifying shares) of, or
securities convertible into, or warrants, rights or options to subscribe for or
purchase shares of, capital stock of (other than preferred stock having no
voting rights of any kind) any Designated Subsidiary if, after giving effect to
any such transaction and the issuances of the maximum number of shares issuable
upon the conversion or exercise of all such convertible securities, warrants,
rights or options, the Company would own, directly or indirectly, less than 80%
of the shares of such Designated Subsidiary (other than preferred stock having
no voting rights of any kind); provided, however, that (i) any issuance, sale,
transfer or other disposition permitted by the foregoing may only be made for at
least a fair market value consideration, as determined by the Board of Directors
pursuant to a Board Resolution adopted in good faith, and (ii) the foregoing
shall not prohibit any such issuance or disposition of securities if required by
any law or any regulation or order of any governmental or insurance regulatory
authority. Notwithstanding the foregoing, (i) the Company may merge or
consolidate any Designated Subsidiary into or with another direct wholly-owned
Subsidiary of the Company and (ii) the Company may, subject to the provisions of
Article Twelve, sell, transfer or otherwise dispose of the entire capital stock
of any Designated Subsidiary at one time for at least a fair market value
consideration, as determined by the Board of Directors pursuant to a Board
Resolution adopted in good faith.
SECTION 5.07. Certificate to Trustee. So long as the Securities remain
Outstanding, the Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year an Officers' Certificate stating that in the course
of the performance by the signers of their duties as officers of the Company,
they would normally have knowledge of any default by the Company in the
performance or fulfillment or observance of any covenants or agreements
contained herein during the preceding fiscal year, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature thereof. The Officers'
Certificate need not comply with Section 15.05.
SECTION 5.08. Waivers of Covenants. Anything in this Indenture to the
contrary notwithstanding, the Company may fail or omit, in respect of the
Securities, and in any particular instance, to comply with a covenant, agreement
or condition contained in Sections 5.02 and 5.04 (other than in 5.04(a)(1) and
(2)) to 5.07, inclusive, if the Company shall have obtained and filed with the
Trustee before or after the time for such compliance the consent in writing of
the Holders
24
of more than 50% in aggregate principal amount of the Securities affected by
such waiver at the time Outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but no
such waiver shall extend to or affect any obligation not expressly waived nor
impair any right consequent thereon and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
ARTICLE SIX
Holders' Lists and Reports by the Company
and the Trustee
SECTION 6.01. Holders' Lists. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee, not more than 15 days
after each Regular Record Date with respect to the Securities, and at such other
times as the Trustee may request in writing, within 30 days after receipt by the
Company of any such request, a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of Securities as of a date not
more than 15 days prior to the time such information is furnished; provided,
however, that no such list with respect to the Securities need be furnished at
any such time if the Trustee is in possession thereof by reason of its acting as
the Security registrar designated under Section 3.06 or otherwise.
SECTION 6.02. Preservation and Disclosure of Lists. (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 6.01 or received
by the Trustee in the capacity of the Security registrar (if so acting) under
Section 3.06. The Trustee may destroy any list furnished to it as provided in
Section 6.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act of 1939.
(c) 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 either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act of 1939.
SECTION 6.03. Reports by the Company. The Company agrees to file with
the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act of 1939 at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Securities
25
Exchange Act of 1934, as amended, shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission.
SECTION 6.04. Reports by the Trustee. (a) The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act of 1939 at the
times and in the manner provided pursuant thereto. The interval between
transmissions of reports to be transmitted at intervals shall be twelve months
or such shorter time required by the Trust Indenture Act of 1939. If the Trust
Indenture Act of 1939 does not specify the date on which a report is due, such
report shall be due on May 15 of each year following the first issuance of the
Securities.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
ARTICLE SEVEN
Remedies of the Trustee and Holders
on Event of Default
SECTION 7.01. Events of Default. Event of Default, with respect to the
Securities, wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any installment of interest upon
any Security as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of and premium, if
any, on any Security as and when the same shall become due and payable
either at maturity, by declaration of acceleration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund
payment or analogous obligation, if any, with respect to the
Securities as and when the same shall become due and payable by the
terms of the Securities; or
(d) failure on the part of the Company duly to observe or
perform any of the covenants, warrants or agreements on the part of
the Company in respect of the Securities in this Indenture (other than
a covenant, warranty or agreement a default in whose
26
performance or whose breach is elsewhere in this Section specifically
dealt with) continued for a period of 30 days after the date on which
written notice of such failure, specifying such failure and requiring
the same to be remedied, shall have been given to the Company by the
Trustee, by registered mail, or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities; or
(e) default shall be made (and shall not have been cured or
waived) in the payment of principal of or interest on any other
obligation for borrowed money of the Company beyond any period of
grace with respect thereto if (i) the aggregate principal amount of
any such obligation in respect of which principal or interest is and
remains in default is in excess of $50,000,000 and (ii) the default in
such payment is not being contested by the Company in good faith and
by appropriate proceedings; provided, however, that subject to the
provisions of Section 7.08 and Section 8.01 the Trustee shall not be
charged with knowledge of any such default unless written notice
thereof shall have been given to the Trustee by the Company, by the
holders or an agent of the holders of any such indebtedness, or by the
trustee then acting under any indenture or other instrument under
which such default shall have occurred; or
(f) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the Federal bankruptcy laws or any
other similar applicable Federal or state law, and such decree or
order shall have continued undischarged and unstayed for a period of
60 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or
assignee or other similar official in bankruptcy or insolvency of the
Company or of all or substantially all of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and
such decree or order shall have continued undischarged and unstayed
for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking an arrangement or a reorganization under the Federal
bankruptcy laws or any other similar applicable Federal or state law,
or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee
or other similar official in bankruptcy or insolvency of it or of all
or substantially all of its property, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to
pay its debts generally as they become due;
then and in each and every such case, so long as such Event of Default with
respect to the Securities Outstanding occurs and is continuing and shall not
have been remedied or waived to the extent permitted by the terms of this
Indenture, unless the principal of all of the Securities shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities, by notice in
writing to the Company (and to the
27
Trustee if given by Holders), may declare the principal of all the Securities
and the interest accrued thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of the Securities 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 Company
shall pay or shall deposit with the Trustee a sum sufficient to pay in the
currency in which the Securities are payable all matured installments of
interest upon all of the Securities and the principal of and premium, if any, on
any and all Securities which shall have become due otherwise than by such
declaration (with interest on overdue installments of interest to the extent
that payment of such interest is enforceable under applicable law and on such
principal and premium, if any, at the rate borne by the Securities or as
otherwise provided in the form of Security, to the date of such payment or
deposit) and the expenses of the Trustee (subject to Section 8.06), and any and
all defaults under this Indenture, other than the nonpayment of principal of and
accrued interest on Securities which shall have become due by such declaration,
shall have been cured or shall have been waived in accordance with Section 7.07
or provision deemed by the Trustee to be adequate shall have been made therefor-
then and in every such case the Holders of at least a majority in aggregate
principal amount of the Securities then Outstanding, by written notice to the
Company and to the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon.
In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the Holders shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders shall continue as though no such
proceeding had been taken.
SECTION 7.02. Payment of Securities Upon Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
instalment of interest upon any Security as and when the same shall become due
and payable, and such default shall have continued for a period of 30 days, or
(b) in case default shall be made in the payment of the principal of and
premium, if any, on any Security as and when the same shall have become due and
payable, whether at maturity of the Security or by declaration or otherwise or
(c) in case default shall be made in the making or satisfaction of any sinking
fund payment or analogous obligation with respect to the Securities when the
same becomes due by the terms of the Securities--then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the Holders (or
Holders of Securities in the case of clause (c) above), the whole amount that
then shall have become due and payable on any such Security (or Securities in
the case of clause (3) above) 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 the
28
overdue installments of interest at the rate borne by the Securities or as
otherwise provided in the form of Security; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred and advances
made by the Trustee, except compensation or advances arising, or expenses or
liabilities incurred, as a result of the Trustee's negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the
principal of and premium, if any, and interest on the Securities to the Persons
entitled thereto, whether or not the principal of and premium, if any, and
interest on the Securities are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions 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 any other obligor on such
Securities and collect, in the manner provided by law out of the property of the
Company or any other obligor on such Securities wherever situated, the moneys
adjudged or decreed to be payable. If any Event of Default with respect to the
Securities occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities under
the Federal bankruptcy laws or any other applicable law, or in case a receiver
or trustee shall have been appointed for the property of the Company or such
other obligor, or in the case of any other similar judicial proceedings relative
to the Company or other obligor upon the Securities, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 7.02,
shall be entitled and empowered by intervention in such proceedings or
otherwise, (a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities, and, in
case of any judicial proceedings, to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities allowed in such judicial
proceedings relative to the Company or any other obligor on such Securities, its
or their creditors, or its or their property, (b) unless prohibited by
applicable law and regulations, to vote on behalf of the Holders of any
Securities in any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings, and (c) to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or
29
reorganization is hereby authorized by each of the Holders of the Securities to
make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such Holders, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred and advances made by the Trustee except compensation or
advances arising, or expenses or liabilities incurred, as a result of the
Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder (except, as aforesaid, for the election of a
trustee in bankruptcy or other Person performing similar functions) in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or
under the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof on 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 be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 7.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Securities, and stamping 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
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except compensation or advances arising,
or expenses or liabilities incurred, as a result of its negligence or
bad faith, and any other amounts owing the Trustee under Section 8.06;
SECOND: In case the principal of the Securities shall not have
become due and be unpaid, to the payment of interest on the
Securities, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the rate borne by the Securities, such payments to be made ratable to
the Persons entitled thereto;
30
THIRD: In case the principal of the Securities shall have become
due, by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon the Securities for principal and premium,
if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
rate borne by the Securities; and in case such moneys shall be
insufficient to pay in full the whole amounts so due and unpaid upon
the Securities, then, to the payment of such principal and premium, if
any, and interest without preference or priority of principal and
premium, if any, over interest, or of interest over principal and
premium, if any, or of any instalment of interest over any other
instalment of interest, or of the Security over any other Security,
ratably to the aggregate of such principal and premium, if any, and
accrued and unpaid interest;
FOURTH: To the payment of any surplus then remaining to the
Company, its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same.
SECTION 7.04. Proceedings by Holders. No Holder of any Security shall
have any right by virtue of 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 or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and 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 the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding (and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 7.07), it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities shall have any right in any manner whatever by virtue of
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holder of 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.
SECTION 7.05. Proceedings by Trustee. 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 by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this 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.
31
SECTION 7.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder to exercise any right or power
accruing upon any 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
an acquiescence therein; and, subject to the provisions of Section 7.04, every
power and remedy given by this Article Seven or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal amount of
the Outstanding Securities shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities by this Indenture; provided, however, that (subject to the provisions
of Section 8.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee shall determine upon advice of counsel that the action
or proceeding so directed may not lawfully be taken or would be materially and
unjustly prejudicial to the rights of Holders not joining in such direction or
if the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceeding so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so
determine that the actions or forebearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities not joining in the giving of said direction, it being understood that
(subject to Section 8.01) the Trustee shall have no duty to ascertain whether or
not such actions or forebearances are duly prejudicial to such Holders. The
Trustee may take any other action deemed proper by the Trustee not inconsistent
with such direction. The Holders of a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default or Event of Default hereunder and its consequences except
(1) a default in the payment of principal of or premium, if any, or interest on
such Securities, or a default in the making of any sinking fund payment with
respect to such Securities or (2) in respect of a covenant or provision hereof
which under Article Eleven cannot be modified or amended without the consent of
the Holder of each Outstanding Security affected. Upon any such waiver the
Company, the Trustee and the Holders of such Securities shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default shall
have been waived as permitted by this Section 7.07, said default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed to
have been cured and to be not continuing.
This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act of 1939 and such Sections 316(a)(1)(A)
and Section 316(a)(1)(B) are hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939.
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SECTION 7.08. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act of 1939; provided, however, that in the case of any default of the
character specified in Section 7.07(d), no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 7.09. Undertaking to Pay Costs. In any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act of 1939; provided
that neither this Section nor the Trust Indenture Act of 1939 shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, and any provision of the Trust Indenture
Act of 1939 to such effect is hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939.
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the rights, which are absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.08) interest on such Security on the respective Stated
Maturities expressed in such Security (or in the case of repayment, on the date
for repayment) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
ARTICLE EIGHT
Concerning the Trustee
SECTION 8.01. Duties and Responsibilities of Trustee. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act
of 1939. Notwithstanding the foregoing, no implied covenants or obligations,
except as provided by the Trust Indenture Act of 1939, shall be read into this
Indenture against the Trustee, and no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 8.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 8.01,
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(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, bond,
debenture, note or other paper 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 an Officers'
Certificate (unless otherwise evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(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 Holders, pursuant to the provisions
of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted 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) prior to the occurrence of an Event of Default with respect
to the Securities and after the curing or waiving of all Events of
Default with respect to the Securities, 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, debenture, note, or
other paper or document, unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the
Securities then Outstanding; provided, however, that the reasonable
expenses of every such investigation shall be paid by the Company or,
if paid by the Trustee, shall be repaid by the Company upon demand;
and provided, further, 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 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 expenses or liabilities as a
condition to so proceeding;
(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
34
be liable or responsible for any misconduct, bad faith or negligence
on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be deemed to have knowledge of any
default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or Holders of greater than 50% of
the outstanding principal amount of the Securities shall have notified
the Trustee thereof.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee represents that it is duly authorized to execute and
deliver this Indenture and perform its obligations hereunder. Neither the
Trustee nor the Authenticating Agent shall be accountable for the use or
application by the Company of any Securities or the proceeds of any Securities
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
SECTION 8.04. Trustee and Agents May Own Securities. The Trustee, any
paying agent, or any agent of the Trustee or the Company under this Indenture,
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 or such
agent and, subject to Sections 8.08 and 8.13, if operative, may otherwise deal
with the Company and receive, collect, hold, and retain collections from the
Company with the same rights it would have if it were not the Trustee or such
agent.
SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions of
Section 13.04, 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 paying agent shall be under any
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon. So long as no Event of Default with
respect to the Securities shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its President, its Chief Financial Officer, any
Vice President, its Treasurer or an Assistant Treasurer.
SECTION 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and 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 counsel
and all persons not regularly in its employ and any amounts paid by the Trustee
to any Authenticating Agent pursuant to Section 8.14) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also
35
covenants to indemnify the Trustee 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, or the performance of its duties hereunder,
including the current payment of all costs and expenses of defending itself
against any claim of liability in the premises. The obligations of the Company
under this Section 8.06 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 8.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 8.01, 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 omitting 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 or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. If the Trustee has or
shall acquire any conflicting interest within the meaning of the Trust Indenture
Act of 1939, the Trustee shall either eliminate such conflicting interest or
resign in the manner provided by, and subject to the provisions of, the Trust
Indenture Act of 1939 and this Indenture.
SECTION 8.09. Eligibility of Trustee. There shall at all times be a
Trustee with respect to the Securities hereunder which shall be a corporation
organized and doing business under the laws of the United States or any state or
territory thereof or of the District of Columbia authorized under such laws to
exercise corporate trust power's, having a combined capital and surplus of at
least $5,000,000, subject to supervision or examination by Federal, state,
territorial, or District of Columbia authority and having its principal office
and place of business in Chicago, Illinois, if there be such a corporation
having its principal office and place of business in said City and willing to
act as Trustee hereunder. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.09,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee with respect to the Securities
shall cease to be eligible in accordance with the provisions of this Section
8.09, such Trustee shall resign immediately in the manner and with the effect
specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may
at any time resign with respect to the Securities by giving written notice by
first class mail of such resignation to the Company and to the Holders of the
Securities at their addresses as they shall appear on the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a
36
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
resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 60 days after
the mailing of such notice of resignation to the Holders, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of Securities who has been a bona fide Holder
of a Security or Securities for at least six months may, subject to the
provisions of Section 7.09, 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 such successor trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 8.08 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
or Securities for at least six months, unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section 310(b)
of the Trust Indenture Act of 1939, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to
the Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed on instruction
of the President, the Chief Financial Officer or the Treasurer of the Company,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
7.09, any Holder 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 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 such Trustee and
appoint such successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities may at any time remove the Trustee by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Company the
evidence provided for in Section 9.01 of the action in that regard taken by the
Holders, and nominate a successor Trustee which shall be deemed appointed as
successor Trustee unless within ten days after such nomination the Company
objects thereto, in
37
which case the Trustee so removed or any Holder of a Security or Securities,
upon the terms and conditions and otherwise as in subsection (a) of this Section
8.10 provided, may petition any court of competent jurisdiction for an
appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee with respect to any
Security or Securities and any appointment of a successor Trustee pursuant to
any of the provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective, and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as Trustee herein; nevertheless, on the written request of
the Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 8.06,
execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee. Upon request of any such successor Trustee,
the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such Trustee, to secure any amounts
and shall be entitled to any indemnities then due it pursuant to the provisions
of Section 8.06.
No successor Trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
Upon acceptance of appointment by a successor Trustee with respect to
any Security or Securities as provided in this Section 8.11, the Company shall
mail notice of the succession of such Trustee hereunder to the Holders of
Securities at their addresses as they shall appear on the Security Register. If
the Company fails to mail such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 8.12. Succession by Merger, etc. Subject to Sections 8.08 and
8.09, 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 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
38
In case at the time any successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of such successor Trustee or, if such
successor Trustee is a successor by merger, conversion or consolidation, the
name of any predecessor hereunder; and in all such cases such certificate shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act of 1939 regarding the collection of claims against the
Company (or any such other obligor).
SECTION 8.14. Authenticating Agents. There may be an Authenticating
Agent or Authenticating Agents appointed by the Trustee from time to time with
power to act on its behalf and subject to its direction in the authentication
and delivery of the Securities issued upon original issuance, exchange, or
transfer thereof as fully to all intents and purposes as though such
Authenticating Agent (or Authenticating Agents) had been expressly authorized to
authenticate and deliver such Securities, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as though authenticated by the Trustee hereunder. For all
purposes of this Indenture, the authentication and delivery of Securities by any
Authenticating Agent pursuant to this Section 8.14 shall be deemed to be the
authentication and delivery of such Securities "by the Trustee", and whenever
this Indenture provides that "the Trustee shall authenticate and deliver"
Securities or that Securities "shall have been authenticated and delivered by
the Trustee", such authentication and delivery by any Authenticating Agent shall
be deemed to be authentication and delivery by the Trustee. Any such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or
Territory or the District of Columbia, with a combined capital and surplus of at
least $5,000,000 and authorized under such laws to act as an authenticating
agent, duly registered to act as such, if and to the extent required by
applicable law and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of its condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 8.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.14, or to be duly registered if and to the extent
required by applicable law and regulations, it shall resign immediately in the
manner and with the effect herein specified in this Section 8.14.
Whenever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by its Authenticating Agent appointed
39
with respect to the Securities and a certificate of authentication executed on
behalf of the Trustee by its Authenticating Agent appointed with respect to the
Securities.
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, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the authenticating agency
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 8.14, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent or such successor corporation.
In case at the time such successor to any such agency shall succeed to
such agency any of the Securities shall have been authenticated but not
delivered, any such successor to such Authenticating Agent may adopt the
certificate of authentication of any predecessor Authenticating Agent and
deliver such Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Authenticating Agent; and
in all cases such certificate shall have the full force which it has anywhere in
the Securities or in this Indenture provided that the certificate of the
predecessor Authenticating Agent shall have had such force; provided, however,
that the right to adopt the certificate of authentication of any predecessor
Authenticating Agent or to authenticate Securities in the name of any
predecessor Authenticating Agent shall apply only to its successor or successors
by merger, conversion or consolidation.
Any Authenticating Agent may at any time resign as Authenticating
Agent with respect to the Securities by giving written notice of resignation to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of any Authenticating Agent with respect to the Securities by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible under this Section
8.14, the Trustee may, and shall, upon request of the Company, promptly use its
best efforts to appoint a successor Authenticating Agent.
Upon the appointment, at any time after the original issuance of the
Securities, of any successor, additional or new Authenticating Agent, the
Trustee shall give written notice of such appointment to the Company and shall
at the expense of the Company mail notice of such appointment to all Holders of
Securities as the names and addresses of such Holders appear on the Security
Register.
Any successor Authenticating Agent with respect to the Securities upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as though
originally named as an Authenticating Agent herein. No
40
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 8.14 and duly registered if and to the extent
required under applicable law and regulations.
Any Authenticating Agent by the acceptance of its appointment with
respect to the Securities shall be deemed to have agreed with the Trustee that:
it will perform and carry out the duties of an Authenticating Agent as herein
set forth, including among other things the duties to authenticate and deliver
Securities when presented to it in connection with exchanges or registrations of
transfer thereof; it will keep and maintain, and furnish to the Trustee from
time to time as requested by the Trustee appropriate records of all transactions
carried out by it as Authenticating Agent and will furnish the Trustee such
other information and reports as the Trustee may reasonably require; it is
eligible for appointment as Authenticating Agent under this Section 8.14 and
will notify the Trustee promptly if it shall cease to be so qualified; and it
will indemnify the Trustee against any loss, liability or expense incurred by
the Trustee and will defend any claim asserted against the Trustee by reason of
any acts or failures to act of the Authenticating Agent but it shall have no
liability for any action taken by it at the specific written direction of the
Trustee.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation and expenses for its services, and the Trustee
shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03, 8.04,
8.06 (insofar as it pertains to indemnification), 9.01, 9.02 and 9.03 shall bind
and inure to the benefit of each Authenticating Agent to the same extent that
they bind and inure to the benefit of the Trustee.
If an appointment is made pursuant to this Section 8.14, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities designated herein issued under the
within-mentioned Indenture.
The First National Bank of Chicago The First National Bank of Chicago
As Trustee As Trustee
- OR -
By:_________________________ By: The First National Bankof Chicago
Authorized Officer As Authenticating Agent
By:________________________________
Authorized Signatory
41
ARTICLE NINE
Concerning the Holders
SECTION 9.01. Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities 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 specified percentage of the Securities have joined therein may be evidenced
(a) by any instrument or any number of instruments of similar tenor executed by
Holders of the Securities in person or by agent or proxy appointed in writing,
or (b) by the record of the Holders of the Securities voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders of the Securities.
SECTION 9.02. Proof of Execution by Holders. Subject to the provisions
of Sections 8.01 and 8.02, proof of the execution of any instrument by a Holder
or his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The ownership of Securities
shall be provided by the Security Register or by a certificate of the Security
registrar with respect to the Securities.
SECTION 9.03. Who Are Deemed Absolute Owners. The Company, the Trustee
with respect to the Securities, and any agent of the Trustee or the Company
under this Indenture may deem the Person in whose name the Security shall be
registered upon the Security Register to be, and may treat him as, the absolute
owner of the Security (whether or not the Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by
anyone other than the Company, the Trustee or any such agent) for the purpose of
receiving payment of or on account of the principal of and premium, if any, and
interest on the Security and for all other purposes; and neither the Company nor
the Trustee nor any such agent shall be affected by any notice to the contrary.
All such payments so made to any Holder for the time being or upon his order
shall, to the extent of the sum or sums so paid, be effectual to satisfy and
discharge the liability for moneys payable upon the Security.
SECTION 9.04. Company-Owned Securities Disregarded. In determining
whether the Holders of the requisite aggregate principal amount of Securities
have concurred in any direction or consent under this Indenture, Securities
which are owned by the Company or any other obligor on the Securities or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities
shall be disregarded and deemed not to be Outstanding for the propose of any
such determinations; provided, however, that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction or
consent only the Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as
42
Outstanding notwithstanding this Section 9.04 if the pledgee shall establish to
the satisfaction of the Trustee the right of the pledgee to vote 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. Upon request of the Trustee, the Company shall furnish to
the Trustee promptly an Officer's Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of the Company or any other obligor on such Securities or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on such Securities; and,
subject to the provisions of Section 8.01, the Trustee shall be entitled to
accept such Officers' Certificates as conclusive evidence of the facts therein
set forth and of the fact that all such Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 9.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security which is shown by the
evidence to be included in the Securities the Holders of which have consented to
or are bound by consents to such action, may, by filing written notice with the
Trustee at its principal office and upon proof of holding as provided in Section
9.02, revoke such action so far as concerns such Security. Except 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 on transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all of the Securities affected by such action.
ARTICLE TEN
[Intentionally Left Blank]
ARTICLE ELEVEN
Supplemental Indentures
SECTION 11.01 Supplemental Indentures without Consent of Holders. The
Company, when authorized by a Board Resolution, 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 of 1939 as in
force at the date of the execution thereof) for one or more of the following
purposes:
43
(a) 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 obligations of
the Company pursuant to Articles Five and Twelve hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional
covenants, restrictions, conditions or provisions a default or an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant,
restriction or condition, such supplemental indenture may provide for
a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may
limit the remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign,
mortgage or pledge any property to or with the Trustee; or to make
such other provisions in regard to matters or questions arising under
this Indenture as shall not adversely affect the interests of the
Holders of the Securities;
(d) to secure the Securities in accordance with the provisions of
Sections 5.05;
(e) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to
the Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to Section 8.11; o r
(f) to modify, amend or supplement this Indenture in such a
manner as to permit the qualification of any indenture supplemental
hereto under the Trust Indenture Act of 1939 as then in effect, except
that nothing herein contained shall permit or authorize the inclusion
in any indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act of 1939.
The Trustee is hereby required to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
44
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.01 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 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Holders. With
the consent (evidenced as provided in Section 9.01) of the Holders of greater
than 50% in aggregate principal amount of the Outstanding Securities, by act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities under this
Indenture; provided, however, that no such supplemental indenture shall (i)
without the consent of the Holder of each Outstanding Security affected thereby,
extend the fixed maturity of any Security, or reduce the rate or extend the time
of payment of interest thereon, or reduce the principal amount thereof or any
premium thereon, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities or
(ii) without the consent of the Holders of all of the Outstanding Securities
affected reduce the aforesaid percentage of Securities, the Holders of which are
required to consent (a) to any such supplemental indenture, (b) to rescind and
annul a declaration that any Securities are due and payable as a result of the
occurrence of an Event of Default, (c) to waive any past default under the
Indenture and its consequences and (d) to waive compliance with Sections 5.02
and 5.04 (other than 5.04(a)(1) and (2)) to 5.07, inclusive.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by its Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Holders of Securities 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.
It shall not be necessary for the consent of the Holders of Securities
under this Section 11.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 11.03. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article Eleven,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject
45
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 11.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Eleven may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Outstanding Securities.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
7.02, shall receive, and shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article Eleven and is authorized and permitted by this Indenture.
ARTICLE TWELVE
Consolidation, Merger, Sale and Conveyance
SECTION 12.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation, amalgamation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations, amalgamations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance or lease of all or substantially all of the property of the Company
to any other corporation (whether or not affiliated with the Company) authorized
to acquire and operate the same; provided, however, and the Company hereby
covenants and agrees, that any such consolidation, amalgamation, merger, sale,
conveyance or lease shall be upon the condition that (a) immediately after such
consolidation, amalgamation, merger, sale, conveyance or lease the corporation
(whether the Company or such other corporation) formed by or surviving any such
consolidation, amalgamation or merger, or to which such sale, conveyance or
lease shall have been made, shall not be in default in the performance or
observance of any of the terms, covenants and conditions of this Indenture to be
kept or performed by the Company; (b) the corporation (if other than the
Company) formed by or surviving any such consolidation, amalgamation or merger
or to which such sale, conveyance or lease shall have been made, shall be a
corporation organized under the laws of the United States of America or any
state thereof; and (c) the due and punctual payment of the principal of and
premium, if any, and interest on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Company, shall be expressly assumed, by supplemental indenture satisfactory in
46
form to the Trustee, executed and delivered to the Trustee by the Corporation
(if other than the Company) formed by such consolidation or amalgamation, or
into which the Company shall have been merged, or by the corporation which shall
have acquired or leased such property.
SECTION 12.02. Successor Corporation to be Substituted. In case of any
such consolidation, merger, sale, conveyance or lease and upon the assumption by
the successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Securities and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Company, such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and (except in the event of a conveyance by way of lease) the
predecessor corporation shall be relieved of any further obligation under this
Indenture and the Securities. Such successor corporation thereupon may cause to
be signed, and may issue either in its own name or in the name of Cincinnati
Financial Corporation any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance or lease
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 12.03. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 8.01 and 8.02, shall receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale or conveyance and
any such assumption complies with the provisions of this Article Twelve and that
all conditions precedent herein provided relating to such transactions have been
complied with.
ARTICLE THIRTEEN
Satisfaction and Discharge of Indenture
SECTION 13.01. Satisfaction, Discharge and Defeasance of the
Securities. The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Securities, the provisions of this Indenture (except as
to (x) the rights of Holders of Securities to receive, from the
47
money, in the currency required, and Government Obligations deposited with the
Trustee pursuant to Section 13.03 or the interest and principal received by the
Trustee in respect of such Government Obligations, payment of the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Securities on the Stated Maturities thereof, (y) the
Company's rights and obligations with respect to such Securities under Sections
3.06, 3.07, 13.03 and 13.04, 5.02, 5.04, 6.01, 8.06, 8.10 and 8.11, so long as
the principal of (and premium, if any) and interest on the Securities remain
unpaid and, thereafter, only the Company's rights and obligations under Sections
5.04, 8.06, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Securities) as it relates to such
Securities shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Request, execute proper instruments acknowledging
the same if:
(a) (1) all Securities therefore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.07 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Sections 13.03 and 13.04) have been delivered to the Trustee for
cancellation;
(2) the Company has paid or caused to be paid in the currency
required all other sums payable under this Indenture in respect of
the Securities; and
(3) the Company has delivered to the Trustee an Officers'
Certificate, an Opinion of Counsel and a written opinion of
independent public accountants, each stating that all conditions
precedent herein provided for relating to the satisfaction of the
entire indebtedness of all Securities and the discharge of the
Indenture as it relates to such Securities have been complied with; or
(b) (1) all Securities not theretofore delivered to the Trustee
for cancellation (i) have become due and payable, or (ii) will become
due and payable at their Stated Maturity within one year;
(2) the condition described in paragraph (1) of Section 13.02 has
been satisfied; and
(3) the conditions described in paragraphs (a)(2) and (a)(3) of
this Section 13.01 have been satisfied; or
(c) (1) the conditions referred to in paragraphs (b)(2) and
(b)(3) of this Section 13.01 have been satisfied;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 13.02 or on the ninety-first day after the date of such
deposit;
48
provided, however, that should that condition fail to be satisfied on
or before such ninety-first day, the Trustee shall promptly, upon
satisfactory receipt of evidence of such failure, return such deposit
to the Company;
(3) the Company has either (i) delivered to the Trustee an
opinion of counsel of a nationally-recognized independent tax counsel
to the effect that Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and the satisfaction, discharge and defeasance
contemplated by this paragraph (c) of this Section 13.01 and will be
subject to Federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred or (ii) the Company shall have
received from, or there shall have been published by, the United
States Internal Revenue Service a ruling to the effect stated in (i)
of this Section 13.01(c)(3); and
(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 13.01 will not result in the delisting of the Securities from
any nationally-recognized securities exchange on which they are
listed.
SECTION 13.02. Defeasance of the Securities. The provisions of this
Indenture (except as to (x) the rights of Holders of Securities to receive, from
the money, in the currency required, and Government Obligations deposited with
the Trustee pursuant to paragraph (1) below or the interest and principal
received by the Trustee in respect of such Government Obligations, payment of
the principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Securities on the Stated Maturities
thereof, (y) the Company's rights and obligations with respect to such
Securities under Sections 3.06, 3.07, 13.03, 13.04, Article Seven (other than
subsections (d) and (e) of Section 7.01), Sections 5.01, 5.02, 5.04, 6.01, 8.06,
8.10 and 8.11, so long as the principal of (and premium, if any) and interest on
the Securities remain unpaid and, thereafter, only the Company's rights and
obligations under Sections 5.04, 8.06, 13.03 and 13.04, and (z) the rights,
powers, trusts, duties and immunities of the Trustee with respect to the
Securities) as it relates to the Securities shall no longer be in effect, and
the Trustee, at the expense of the Company shall, upon Company Request, execute
proper instruments acknowledging the same if:
(1) the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) Dollars in an
amount, or (B) Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide on or before the due date of any payment in respect
of the Securities in an amount, or (C) a combination thereof,
sufficient, after payment of all Federal, state and local taxes in
respect thereof payable by the Trustee, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity of such principal or
installment of principal or interest;
49
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) the interest of the Holders in such deposit shall have been
duly perfected under the applicable provisions of the Uniform
Commercial Code; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 13.03. Application of Trust Funds; Indemnification. (a)
Subject to the provisions of Section 13.04, all money and Government Obligations
deposited with the Trustee pursuant to Section 13.01 or 13.02 and all money
received by the Trustee in respect of Government Obligations deposited with the
Trustee, shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any paying agent (including the Company acting as its own paying
agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money and
Government Obligations have been deposited with or received by the Trustee as
contemplated by Section 13.01 or 13.02.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to Section 13.01 or 13.02 or the interest and principal
received in respect of such obligations, other than any such tax, fee or other
charge payable by or on behalf of Holders. The Company shall be entitled to
prompt notice of an assessment or the commencement of any proceeding for which
indemnification may be sought hereunder and, at its election, to contest such
assessment or to participate in, assume the defense of, or settle such
proceeding.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any Government Obligations or money held by it as provided
in Section 13.01 or 13.02 which, in the opinion of a nationally-recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such
obligations or money were deposited or received.
(d) If the Trustee is unable to apply any money or Government
Obligations in accordance with Section 13.02 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities, if any, shall be revived
and reinstated as though no deposit had occurred pursuant to Section 13.02 until
such time as the Trustee is permitted to apply all such money or Government
Obligations in accordance with Section 13.02; provided, however, that if the
Company has made any payment of interest on or principal of (and premium, if
any) on any Securities, if any, because of the reinstatement of its obligations,
the
50
Company shall be subrogated to the rights of the Holders of the Securities, if
any, to receive such payment from the money or Government Obligations held by
the Trustee.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with
or paid to the Trustee or any paying agent for payment of the principal of and
premium, if any, or interest on Securities and not applied but remaining
unclaimed by the Holders of Securities for two years after the date upon which
the principal of and premium, if any, or interest on such Securities, as the
case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee or such paying agent on demand; and the Holder of any of the
Securities entitled to receive such payment shall thereafter look only to the
Company for any payment thereof.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
any supplemental indenture, or of any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any Subsidiary or of any predecessor or successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly 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, directors or employees, 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 thereby; and that any and all such personal
liability, 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, director or employee, 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 thereby, are hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
51
ARTICLE FIFTEEN
Miscellaneous Provisions
SECTION 15.01. Provisions Binding on Successors of the Company. All
of the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of
the Securities. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any Person, firm or corporation,
other than the parties hereto, any agent of the Trustee or the Company under
this Indenture 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, subject to the provisions of Articles Twelve and Fourteen, for
the sole benefit of the parties hereto, any agent of the Trustee or the Company
under this Indenture and the Holders of the Securities.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities on the Company may be given or
served by being deposited, registered or certified mail postage prepaid, in a
post office letter box in the United States addressed (until another address is
filed by the Company with the Trustee) to the Company, Cincinnati Financial
Center, 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000. Any notice, direction,
request or demand by any Holder of a Security or the Company 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 principal office of the Trustee,
addressed to the attention of its Corporate Trust Services Division. Any notice,
report or other instrument required by any of the provisions of this Indenture
to be given by the Trustee to the Holders of Securities shall be deemed to have
been sufficiently given, for all purposes, when mailed by first class mail.
SECTION 15.04. New York Contract. This Indenture and the Securities
shall for all purposes be construed in accordance with and governed by the laws
of the State of New York.
SECTION 15.05. Evidence of Compliance with Conditions Precedent. Upon
any Company request 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, if any (including
any covenant, compliance with which constitutes a condition 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 document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
52
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for 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 15.06. Legal Holidays. In any case where the date of maturity
of interest on or principal of or premium, if any, on the Securities or the date
fixed for redemption of any Security or Securities will be a legal holiday or a
day on which banking institutions are legally authorized or obligated to close
in Illinois or Ohio or any other location where a paying agent appointed
pursuant to Section 5.02 is located, then payment of such interest on or
principal of and premium, if any, on such Securities need not be made by such
paying agent on such date but may be made by such paying agent on the next
succeeding business day that is not a day in such location that is either a
legal holiday or a day on which banking institutions are legally authorized or
obligated to close, with the same force and effect as if made on such date of
maturity or the date fixed for redemption and no interest shall accrue for the
period from and after such prior date.
SECTION 15.07. Trust Indenture Act of 1939 to Control. If any
provision hereof limits, qualifies or conflicts with the duties imposed by any
of Sections 310 through 317 of the Trust Indenture Act of 1939, by the operation
of Section 318(c) thereof, such imposed duties shall control, except as, and to
the extent, expressly excluded from this Indenture, as permitted by the Trust
Indenture Act of 1939. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act of 1939 that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 15.08. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 15.09. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original and
such counterparts shall together constitute but one and the same instrument. The
First National Bank of Chicago hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
53
IN WITNESS WHEREOF, CINCINNATI FINANCIAL CORPORATION has caused this
Indenture to be signed and acknowledged by its President and either its Chief
Financial Officer or its Treasurer, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or an Assistant
Secretary, and The First National Bank of Chicago has caused this Indenture to
be signed and acknowledged by one of its Senior Trust Officers, has caused its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or one of its Assistant Secretaries, as of the day and year first
written above.
CINCINNATI FINANCIAL
CORPORATION
By
------------------------------
Title
ATTEST:
-------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By
------------------------------
(CORPORATE SEAL)
ATTEST:
-------------------------
54
