Exhibit 4.1
INDENTURE
___________________________
Dated as of November 3, 2005
between
SELECTIVE INSURANCE GROUP, INC., as Issuer,
and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
___________________________
$100,000,000 6.70% Senior Notes due 2035
RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939
(THE "TRUST INDENTURE ACT") AND INDENTURE
Trust Indenture Act Section Indenture Section
ss.310 (a)(1).................................... 6.08
(a)(2).................................... 6.08
(b)....................................... 6.09
ss.311 (b)(4).................................... 6.12
(b)(6).................................... 6.12
ss.312 (a)....................................... 7.01
(b)....................................... 7.02
(c)....................................... 7.02
ss.313 (a)....................................... 7.03
(b)(2).................................... 7.03
(c)....................................... 7.03
(d)....................................... 7.03
ss.314 (a)....................................... 7.04
(c)(1).................................... 1.02
(c)(2).................................... 1.02
(e)....................................... 1.02
ss.316 (a) (last sentence)....................... 1.01
(a)(1)(A)................................. 5.12
(a)(1)(B)................................. 5.13
(b)....................................... 5.08
ss.317 (a)(1).................................... 5.03
(a)(2).................................... 5.04
(b)....................................... 10.03
ss.318 (a)....................................... 1.07
_____________
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
NOTE: Section 318(c) of the Trust Indenture Act provides that the
provisions of Sections 310-317 are a part of and govern every
qualified indenture, whether or not physically contained therein.
Table of Contents
Page
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions....................................................1
Section 1.02. Compliance Certificates and Opinions...........................8
Section 1.03. Form of Documents Delivered to Trustee.........................9
Section 1.04. Acts of Holders................................................9
Section 1.05. Notices, Etc. to Trustee and the Company......................10
Section 1.06. Notice to Holders; Waiver.....................................11
Section 1.07. Conflict with Trust Indenture Act.............................11
Section 1.08. Effect of Headings and Table of Contents......................11
Section 1.09. Successors and Assigns........................................11
Section 1.10. Separability Clause...........................................11
Section 1.11. Benefits of Indenture.........................................11
Section 1.12. Governing Law.................................................12
Section 1.13. Legal Holidays................................................12
Section 1.14. No Recourse Against Others....................................12
Section 1.15. Counterparts..................................................12
ARTICLE 2
Note Forms
Section 2.01. Forms Generally...............................................12
Section 2.02. Form of Trustee's Certificate of Authentication...............12
Section 2.03. Specific Global and Certificated Note Forms...................13
ARTICLE 3
The Notes
Section 3.01. Title and Terms...............................................15
Section 3.02. Denominations.................................................15
Section 3.03. Execution, Authentication, Delivery and Dating................16
Section 3.04. Temporary Notes...............................................16
Section 3.05. Registration, Transfer and Exchange...........................17
Section 3.06. Special Transfer and Exchange Provisions......................18
Section 3.07. Mutilated, Destroyed, Lost and Stolen Notes...................21
Section 3.08. Payment of Interest; Interest Rights Preserved................22
Section 3.09. Persons Deemed Owners.........................................23
Section 3.10. Cancellation..................................................24
Section 3.11. Computation of Interest.......................................24
Section 3.12. CUSIP or ISIN Numbers.........................................24
ARTICLE 4
Satisfaction and Discharge
Section 4.01. Satisfaction and Discharge of Indenture.......................24
Section 4.02. Application of Trust Money....................................25
ARTICLE 5
Remedies
Section 5.01. Events of Default.............................................25
Section 5.02. Acceleration of Maturity; Rescission and Annulment............27
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.......................................................28
Section 5.04. Trustee May File Proofs of Claim..............................28
Section 5.05. Trustee May Enforce Claims Without Possession of Notes........29
Section 5.06. Application of Money Collected................................29
Section 5.07. Limitation on Suits...........................................29
Section 5.08. Unconditional Right of Holders to Receive Principal
and Interest..................................................30
Section 5.09. Restoration of Rights and Remedies............................30
Section 5.10. Rights and Remedies Cumulative................................30
Section 5.11. Delay or Omission Not Waiver..................................30
Section 5.12. Control by Holders............................................31
Section 5.13. Waiver of Past Defaults.......................................31
Section 5.14. Undertaking for Costs.........................................31
Section 5.15. Waiver of Stay or Extension Laws..............................32
ARTICLE 6
The Trustee
Section 6.01. Certain Duties and Responsibilities...........................32
Section 6.02. Notice of Defaults............................................33
Section 6.03. Certain Rights of Trustee.....................................33
Section 6.04. Not Responsible for Recitals or Issuance of Notes.............34
Section 6.05. May Hold Notes................................................35
Section 6.06. Money Held in Trust...........................................35
Section 6.07. Compensation and Reimbursement................................35
Section 6.08. Corporate Trustee Required; Eligibility.......................36
Section 6.09. Resignation and Removal; Appointment of Successor.............36
Section 6.10. Acceptance of Appointment by Successor........................38
Section 6.11. Merger, Conversion, Consolidation or Succession to Business...38
Section 6.12. Preferential Claims...........................................39
Section 6.13. Appointment of Authenticating Agent...........................39
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.....41
Section 7.02. Preservation of Information; Communications to Holders........41
Section 7.03. Reports by Trustee............................................42
Section 7.04. Reports by Company............................................43
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.01. Company May Consolidate, Etc. on Certain Terms................43
Section 8.02. Successor Corporation Substituted.............................44
ARTICLE 9
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Holders............45
Section 9.02. Supplemental Indentures with Consent of Holders...............46
Section 9.03. Execution of Supplemental Indentures..........................46
Section 9.04. Effect of Supplemental Indentures.............................46
Section 9.05. Conformity with Trust Indenture Act...........................47
Section 9.06. Reference in Notes to Supplemental Indentures.................47
ARTICLE 10
Covenants
Section 10.01. Payment of Principal and Interest............................47
Section 10.02. Maintenance of Office or Agency..............................47
Section 10.03. Money for Note Payments to be Held in Trust..................47
Section 10.04. Statement by Officers as to Default..........................49
Section 10.05. Existence....................................................49
Section 10.06. Maintenance of Properties....................................49
Section 10.07. Payment of Taxes and Other Claims............................49
Section 10.08. Negative Pledge..............................................49
Section 10.09. Limitation on Disposition....................................50
Section 10.10. Waiver of Certain Covenants..................................50
Section 10.11. Ability of the Company to hold Notes.........................50
ARTICLE 11
Redemption of Notes
Section 11.01. Redemption...................................................51
ARTICLE 12
Defeasance and Covenant Defeasance
Section 12.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance..........................51
Section 12.02. Defeasance and Discharge.....................................51
Section 12.03. Covenant Defeasance..........................................51
Section 12.04. Conditions to Defeasance or Covenant Defeasance..............52
Section 12.05. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions..............53
Section 12.06. Reinstatement................................................53
Section 12.07. Qualifying Trustee...........................................54
EXHIBIT A - Form of Certificated Note........................................A-1
EXHIBIT B - Form of Global Note .............................................B-1
EXHIBIT C - Form of Transfer/Exchange Certificate for transfer/exchange
from Restricted Certificated Note to Rule 144A Global Note......C-1
EXHIBIT D - Form of Transfer/Exchange Certificate for transfer/exchange
from Restricted Rertificated Note to Regulation S Global
Note.............................................................D-1
EXHIBIT E - Form of Transfer/Exchange Certificate for transfer/exchange
from Restricted Certificated Note to Unrestricted Global
Note.............................................................E-1
EXHIBIT F - Form of Transfer/Exchange Certificate for transfer/exchange
from Rule 144A Global Note to Regulation S Global Note ..........F-1
EXHIBIT G - Form of Transfer/Exchange Certificate for transfer/exchange
from Rule 144A Global Note to Unrestricted Global Note...........G-1
EXHIBIT H - Form of Transfer/Exchange Certificates for transfer/exchange
from Regulation S Global Note to Rule 144A Global Note...........H-1
EXHIBIT I - Form of Purchaser's Letter......................................I-1
INDENTURE
INDENTURE, dated as of November 3, 2005, between Selective Insurance
Group, Inc., a New Jersey corporation (the "Company"), and Wachovia Bank,
National Association, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the issuance, execution,
authentication, delivery and administration of $100,000,000 aggregate principal
amount of its 6.70% Senior Notes due 2035 (the "Notes");
WHEREAS, all things necessary to make the Notes, when executed and
delivered by the Company and authenticated by the Trustee or an Authenticating
Agent and delivered as provided in this Indenture, the valid, binding and legal
obligations of the Company, and to constitute these presents a valid indenture
and agreement of the Company according to its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1
Definitions and Other Provisions of General Application
-------------------------------------------------------
Section 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(ii) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(iii) 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 in the United
States of America as of the date of such computation; and
(iv) the words "herein," "hereof," "hereto" and
"hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate the Notes.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of the board of directors of the Company.
"Board Resolution" means a copy of one or more resolutions certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, delivered to the Trustee.
"Business Day" means any day other than Saturday, Sunday or other day
on which banking institutions in New York are authorized or obligated by law to
close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equity equivalents (however designated) of such Person.
"Certificated Note" means any Note other than a Global Note.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg,
or any successor thereto.
"Closing Date" means November 3, 2005.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means Selective Insurance Group, Inc. or any successor under
this Indenture.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or any Vice President and
delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be principally administered, which office at the date of original execution of
this Indenture is located at Xxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"Covenant Defeasance" has the meaning specified in Section 12.03.
"CUSIP Number" means the alphanumeric designation assigned to a Note
by Standard & Poor's CUSIP Service Bureau.
"Custodian" means Wachovia Bank, National Association, as custodian of
the Global Notes for DTC under a custody agreement or any similar successor
agreement.
"DTC" means The Depository Trust Company, or any successor thereto.
"default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Defeasance" has the meaning specified in Section 12.02.
"Depositary" means, with respect to the Global Notes, DTC or such
other Person as shall be designated as Depositary by the Company pursuant to
Section 2.03(b).
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System, or any successor thereto.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Notes" means any securities of the Company to be offered to
Holders of Notes in exchange for the Notes pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Notes containing terms identical in all
material respects to the Notes for which they are exchanged, except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Notes or, if no such interest has been paid, from the date of issuance of
the Notes and (ii) the Exchange Notes will not contain terms with respect to
transfer restrictions, minimum purchase or the payment of additional interest
upon the occurrence of a Registration Default.
"Exchange Offer" means the exchange offer by the Company of Exchange
Notes for Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement
of the Company under the Securities Act registering Exchange Notes for
distribution pursuant to the Exchange Offer.
"Fair Value" has the meaning specified in Section 10.09.
"Global Note" means a Note bearing the legend specified in Section
2.03(a) evidencing all or part of the Notes, issued to the Depositary or its
nominee with respect to such Notes and registered in the name of such
Depositary or nominee.
"Government Obligations" means securities which are (x) direct, full
faith and credit obligations of the United States of America or (y) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, in each case where the payment
or payments thereunder are unconditionally guaranteed as a full faith and
credit obligation by the United States of America and which are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect to the Government Obligation or the specific payment of principal of
or interest on the Government Obligation evidenced by such depository receipt.
"Holder" means a Person in whose name a Note is registered in the
Register.
"Indebtedness" means (without duplication), with respect to any
Person, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person and (iv) every obligation of the type referred
to in clauses (i) through (iii) above of another Person the payment of which
such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor, guarantor or otherwise (but only, in the case of this
clause (iv), to the extent such Person has guaranteed or is responsible or
liable for such obligations).
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of the Notes established as contemplated by Section 3.01.
"Interest Payment Date," with respect to any Note, means the Stated
Maturity of an installment of interest on such Note.
"ISIN Number" means the alphanumeric designation assigned to a Note by
Standard & Poor's CUSIP Service Bureau.
"Lien" means, with respect to any property or assets, any mortgage,
deed of trust, pledge, lien, security interest or other encumbrance (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof, any filing or agreement to give a lien or file a
financing statement as a debtor under the Uniform Commercial Code or any
similar statute other than to reflect ownership by a third party of property
under a lease that is not in the nature of a conditional sale or title
retention agreement).
"Maturity," with respect to any Note, means the date on which the
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration or otherwise.
"Officers' Certificate" means a certificate signed by any two of the
following officers of the Company: the Chairman of the Board of Directors, the
Vice Chairman, the Chief Executive Officer, the President, any Executive Vice
President, any Senior Vice President, any Vice President, the Treasurer or the
Secretary or any Assistant Treasurer or Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or of counsel to the Company, or other counsel reasonably
satisfactory to the Trustee.
"Original Notes" means all Notes other than Exchange Notes.
"Outstanding," when used with respect to the Notes, means, as of the
date of determination, all the Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Notes for whose payment at the Maturity thereof
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 Notes;
(iii) Notes for whose payment money or Government
Obligations as contemplated by Section 12.04 in the necessary
amount have been theretofore deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.08)
in trust for the Holders of such Notes in accordance with
Section 12.05; and
(iv) Notes which have been paid pursuant to Section
3.07 or in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture,
unless there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes are valid obligations of
the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor thereunder or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee knows, meaning actual knowledge of a
Responsible Officer, to be so owned shall be so disregarded. Notes 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 Notes and that the pledgee is not the Company or
any other obligor or any Affiliate of the Company or of such other obligor. In
connection with any request, demand, authorization, direction, consent or
waiver hereunder, all Outstanding Notes will vote and consent together on all
matters as one class and none of the Outstanding Notes will have the right to
vote or consent as a class separate from one another on any matter.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Notes 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," with respect to the Notes, means the place where
the principal of, and interest on, the Notes are payable as provided in or
pursuant to this Indenture or the Notes.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Purchaser's Letter" means a letter substantially in the form set
forth in Exhibit I.
"Register" and "Note Registrar" have the respective meanings specified
in Section 3.05.
"Registration" means a registered exchange offer for the Notes by the
Company pursuant to the Exchange Offer Registration Statement or other
registration for resale of the Notes under the Securities Act pursuant to a
Shelf Registration Statement, in each case in accordance with the terms of the
Registration Rights Agreement.
"Registration Default" has the meaning set forth in the Registration
Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 3, 2005, between the Company and Xxxxx,
Xxxxxxxx & Xxxxx, Inc. (the "Initial Purchaser"), and certain permitted assigns
specified therein, as such agreement may be amended, modified or supplemented
from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Notes means the date specified in or pursuant to this Indenture or
such Note as the "Regular Record Date."
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Global Note" has the meaning set forth in Section
2.03(a).
"Regulation S Legend" shall mean the Regulation S Legend set forth on
the face of the Note attached as Exhibit B.
"Regulation S Restricted Period" means the 40 calendar days after the
Closing Date.
"Responsible Officer" means any officer or authorized agent of the
Trustee in its Corporate Trust Office and also means, with respect to a
particular corporate trust matter, any other officer or authorized agent to
whom such matter is referred because of knowledge of and familiarity with the
particular subject.
"Restricted Certificated Note" has the meaning set forth in Section
2.03(a).
"Restricted Subsidiary" means a Subsidiary incorporated under the laws
of any state of the United States of America or of the District of Columbia;
provided that no such Subsidiary shall be a restricted Subsidiary if (1) the
total assets of such Subsidiary are less than 20% of the total assets of the
Company and its consolidated Subsidiaries (including such Subsidiary), in each
case as set forth on the most recent fiscal year-end balance sheets of such
Subsidiary and the Company, respectively, and determined in accordance with
generally accepted accounting principles in the United States of America, or
(2) in the judgment of the Board of Directors, as evidenced by a Board
resolution, such Subsidiary is not material to the financial condition of the
Company and its consolidated Subsidiaries taken as a whole.
"Restrictive Legends" means the Regulation S Legend and the Rule 144A
Legend.
"Rule 144A Global Note" has the meaning set forth in Section 2.03(a).
"Rule 144A Legend" shall mean the Rule 144A Legend set forth on the
face of the Notes attached as Exhibits A and B.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a shelf registration statement
under the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Registration Rights Agreement, registering Notes for
resale.
"Special Record Date" for the payment of any Defaulted Interest on any
Note means a date fixed by the Trustee pursuant to Section 3.08.
"Standard & Poor's" means Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies.
"Stated Maturity," with respect to any Note or any installment of
interest thereon, means the date established by or pursuant to this Indenture
or such Note as the fixed date on which the principal of such Note or such
installment of interest is due and payable.
"Subsidiary" of any Person means a Person more than 50% of the
outstanding Capital Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person
and one or more Subsidiaries thereof.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder. If
at any time there is more than one such Person, "Trustee" shall mean each such
Person and as used with respect to the Notes shall mean the Trustee with
respect to Notes.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05.
"Unrestricted Certificated Note" means any Certificated Note other
than a Restricted Certificated Note.
"Unrestricted Global Note" has the meaning set forth in Section
2.03(a).
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
Section 1.02. Compliance Certificates and Opinions. Except as
otherwise expressly provided in this Indenture, upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with or an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that, in the case of any
such application or request as to which the furnishing of such documents or any
of them is specifically required by any provision of this Indenture relating to
such particular application or request, no additional certificate or opinion
need be furnished. Any Officers' Certificate will comply with Section 314(e) of
the Trust Indenture Act.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which the officer's certificate or
opinion is based is erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Note, they may, but need not, be
consolidated and form one instrument.
Section 1.04. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Notes
held by any Person, and the date of holding the same, shall be proved by the
Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, fix in advance a record date for the
determination of Holders of Notes entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Any such record date shall be fixed at the
Company's discretion. If not set by the Company prior to the first solicitation
of a Holder made by any Person in respect of any such matters referred to in
the foregoing sentence, such record date shall be the date 30 days prior to
such first solicitation of Holders. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent and waiver or other
Act may be sought or given before or after the record date, but only the
Holders of Notes of record at the close of business on such record date shall
be deemed to be Holders of Notes for the purpose of determining whether Holders
of the requisite proportion of the Notes Outstanding have authorized or agreed
or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Notes Outstanding shall
be computed as of such record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Note
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any Note may do so with regard to all
or any part of the principal amount of such Note or by one or more appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount of such Note.
Section 1.05. Notices, Etc. to Trustee and the Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
(i) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
at Wachovia Bank, National Association, 00 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, XX 00000 Attn: Corporate Trust Administrator; or
(ii) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx
00000, Attn: General Counsel, or at any other address previously
furnished in writing to the Trustee by the Company.
with a copy of any notice given pursuant to Article 5 hereof
to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 1.06. Notice to Holders; Waiver. Where this Indenture or any
Note provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein or in such Note expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the Holder's address as it appears in the Register, not later
than the latest date, or not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
Where this Indenture or any Note provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
Section 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.09. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind their respective successors and
assigns, whether so expressed or not.
Section 1.10. Separability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law. This Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York.
Section 1.13. Legal Holidays. In any case where any Interest Payment
Date or Stated Maturity of any Note shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Notes) payment of interest or principal need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or at the Stated Maturity, and no interest shall accrue with
respect to such payments for the period from and after such Interest Payment
Date or Stated Maturity, as the case may be, to the next succeeding Business
Day.
Section 1.14. No Recourse Against Others. A director, officer,
employee, agent, representative or stockholder, as such, of the Company shall
not have any liability for any obligation of the Company under the Notes or
this Indenture. By accepting a Note, each Holder shall waive and release all
such liability. This waiver and release shall be part of the consideration for
the issue of the Notes.
Section 1.15. Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE 2
Note Forms
----------
Section 2.01. Forms Generally. (a) The Notes (including the Trustee's
certification of authentication) shall be in substantially the forms attached
hereto as Exhibits A and B hereof; provided that Exchange Notes shall not
contain terms with respect to transfer restrictions, minimum purchase or
additional interest payable upon occurrence of a Registration Default. On the
Closing Date, each of the Original Notes shall be issued in such form as is set
forth in Section 2.03(a). The Notes shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plans as the officers
of the Company executing the same may determine with the approval of the
Trustee.
The Notes may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Notes are admitted to trading, or to conform to general usage.
(b) Each Note shall be dated the date of its authentication.
Unless otherwise provided in or pursuant to this Indenture or any
Notes, the Notes shall be issuable in registered form without coupons.
Section 2.02. Form of Trustee's Certificate of Authentication. Only
such Notes as shall bear thereon a certification of authentication
substantially as set forth in the forms of the Notes in Exhibits A and B
hereto, executed by the Trustee by manual signature of one of its authorized
signatories, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certification by the Trustee upon any Note
executed by or on behalf of the Company shall be conclusive evidence that the
Note so authenticated has been duly authenticated and delivered hereunder and
that the holder is entitled to the benefits of this Indenture.
Section 2.03. Specific Global and Certificated Note Forms. (a) Except
as otherwise provided herein or pursuant to Section 3.01, Original Notes
offered and sold as part of their initial distribution to Persons who are
"qualified institutional buyers," as defined in Rule 144A under the Securities
Act ("QIBs"), shall be issued in the form of one or more Global Notes (each a
"Rule 144A Global Note") in definitive, fully registered form without coupons,
substantially in the form set forth in Exhibit B, with such applicable legends
as are provided for herein. Such Global Notes shall be registered in the name
of Cede & Co. or another nominee designated by DTC and deposited with the
Trustee, at its Corporate Trust Office as custodian for DTC, as duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of any Rule 144A Global Note may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC for such Global Note, as provided in Section 3.05.
Except as otherwise provided herein or pursuant to Section 3.01,
Original Notes offered and sold as part of their initial distribution in
reliance on Regulation S under the Securities Act shall be issued in the form
of one or more Global Notes in definitive, fully registered form without
coupons, substantially in the form set forth in Exhibit B, with such applicable
legends as are provided for herein. Such Global Notes shall be registered in
the name of Cede & Co. or another nominee designated by DTC and deposited with
the Trustee, at its Corporate Trust Office as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as herein provided, for credit
by DTC to the respective accounts of beneficial owners of such Notes (or such
accounts as they may direct) at Euroclear and Clearstream. Until such time as
the Regulation S Restricted Period shall be terminated, each such Global Note
shall be referred to herein as a "Regulation S Global Note." After such time as
the Regulation S Restricted Period shall be terminated, each such Global Note
shall be referred to herein as an "Unrestricted Global Note." The aggregate
principal amount of any Regulation S Global Note and any Unrestricted Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC for such Global Note, as provided
in Section 3.05. Except as otherwise provided herein or pursuant to Section
3.01 or agreed to by the Company, no Regulation S Global Note or Unrestricted
Global Note shall be issued except as provided in this paragraph to evidence
Original Notes offered and sold as part of their initial distribution in
reliance on Regulation S.
Except as otherwise provided herein or pursuant to Section 3.01,
Original Notes offered and sold as part of their initial distribution to
"institutional accredited investors" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) who are not QIBs shall be issued in the form of
Certificated Notes without coupons, registered in the name of the purchaser
thereof, substantially in the form set forth in Exhibit A (the "Restricted
Certificated Notes"), with such applicable legends as are provided for herein.
Restricted Certificated Notes may not be transferred or exchanged for interests
in a Global Note except as provided in Section 3.06.
Except for Notes authenticated and delivered in connection with their
initial distribution by the Initial Purchaser and unless otherwise agreed by
the Company, no Restricted Certificated Note shall be authenticated and
delivered hereunder unless and until each subsequent purchaser of a beneficial
interest in such Restricted Certificated Note shall have executed and delivered
to the Company for the offering of such Notes a letter substantially in the
form set forth in Exhibit I and the Company certifies to the Trustee in writing
to that effect.
Unless exchanged for an Exchange Note in connection with an effective
Registration pursuant to the Registration Rights Agreement, each Rule 144A
Global Note and each Restricted Certificated Note issued in exchange for an
interest in a Rule 144A Global Note or Restricted Certificated Note shall bear
the Rule 144A Legend on the face thereof and, prior to the expiration of the
Regulation S Restricted Period, each Regulation S Global Note shall bear the
Regulation S Legend on the face thereof.
Each Global Note shall also bear a legend substantially to the
following effect:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate issued in exchange for this certificate or any
portion hereof is registered in the name of Cede & Co. or in
such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), any transfer, pledge or other use
hereof for value or otherwise by or to any person is wrongful
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
(b) If at any time the Depositary for any Global Note
notifies the Company that it is unwilling or unable to continue as Depository
for such Global Notes or if at any time the Depositary for such Global Notes
shall no longer be a clearing agency registered under the Exchange Act, the
Company shall appoint a successor Depositary with respect to such Global Notes.
If (i) a successor Depositary for such Global Notes is not appointed by the
Company within 60 days after the Company receives such notice or becomes aware
of such ineligibility, (ii) an Event of Default has occurred and is continuing
with respect to the Notes, or (iii) the Company decides in its sole discretion
to terminate the book-entry system through the Depositary, the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate of the
Company directing the authentication and delivery thereof, will authenticate
and deliver the Notes in certificated form ("Certificated Notes") in any
authorized denominations in an aggregate principal amount equal to the
principal amount of such Global Notes in exchange for such Global Notes.
(c) Global Notes shall in all respects be entitled to the
same benefits under this Indenture as Certificated Notes authenticated and
delivered hereunder.
ARTICLE 3
The Notes
---------
Section 3.01. Title and Terms. The aggregate principal amount of Notes
which may be authenticated and delivered under this Indenture, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to this Indenture, is limited to
$100,000,000; provided, that subject to applicable law, the maximum aggregate
principal amount of the Notes hereunder may be increased from time to time, if,
when and as authorized by a Board Resolution and upon delivery to the Trustee
of a Company Order. Unless the context otherwise requires, Original Notes and
the Exchange Notes of like tenor and terms shall constitute one series for all
purposes under the Indenture, including with respect to any amendment, waiver,
acceleration or other Act of the Holders.
The Notes shall be known and designated as the "6.70% Senior Notes due
2035" of the Company. Their Stated Maturity shall be November 1, 2035, and they
shall bear interest at the rate of 6.70% per annum, from November 3, 2005 or
from and including 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
May 1 and November 1, commencing May 1, 2006, until and excluding such date on
which the principal thereof is paid or made available for payment.
All amounts payable in respect of the Notes shall be made in United
States dollars.
Payment of the principal of, and interest on, the Notes shall be made,
subject to surrender of the Note in the case of payment of principal at the
office or agency of the Company maintained for that purpose in The City of New
York, by check mailed to the address of the Person entitled thereto as such
address shall appear in the Register, or in such other manner as may be
mutually acceptable to the Company and the Trustee; provided, however, upon
written request by any Holder given to the Trustee not later than 15 days prior
to the Stated Maturity of principal or interest, payment of principal or
interest due at the Stated Maturity may be made, subject to surrender of the
Note in the case of payment of principal, by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto pursuant to Section 3.09.
As provided in Article 11, the Notes may not be redeemed, in whole or
in part, at the option of either the Company or any Holder prior to the Stated
Maturity.
The provisions for Defeasance of the Notes under Section 12.02 and
Covenant Defeasance of the Notes under Section 12.03, apply to the Notes.
The Notes shall rank pari passu with other existing and future
unsecured senior indebtedness of the Company.
Section 3.02. Denominations. Notes that are not Restricted
Certificated Notes are issuable only in fully registered form, without coupons,
in denominations of $1,000 and any integral multiple thereof.
Notes that are Restricted Certificated Notes are issuable only in
registered form without coupons and in denominations of $100,000 and integral
multiples of $1,000 in excess thereof.
Section 3.03. Execution, Authentication, Delivery and Dating. The
Notes shall be executed on behalf of the Company by its President or any Vice
President, attested by its Secretary or any Assistant Secretary. The signature
of any of these officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were the proper officers of the Company when their signatures were affixed to
such Notes shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in accordance with
the Company Order shall authenticate and deliver such Notes. At any time and
from time to time after the execution and delivery of this Indenture and after
the effectiveness of the Exchange Offer Registration Statement under the
Securities Act with respect thereto, the Company may deliver Exchange Notes
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Exchange Notes and a
like principal amount of Original Notes for cancellation in accordance with
Section 3.10, and the Trustee in accordance with the Company Order shall
authenticate and make available for delivery such Notes. Prior to
authenticating any Exchange Notes, and accepting any additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall be entitled to receive, upon request, and (subject to Section 6.01) shall
be fully protected in relying upon, an Opinion of Counsel in accordance with
Section 1.02.
Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Note to the Trustee for cancellation as
provided in Section 3.10 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued and sold by the Company, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
The Trustee shall not be required to authenticate or to cause an
Authentication Agent to authenticate any Notes if the issue of such Notes
pursuant to this Indenture will affect the Trustee's own rights, duties,
indemnities or immunities under the Notes and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Section 3.04. Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and deliver to the Trustee and, upon Company
Order, the Trustee shall authenticate and deliver in the manner provided in
Section 3.03, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers of the Company executing such Notes may determine,
as evidenced by their execution of such Notes. Such temporary Notes may be in
global form.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes and of like tenor of authorized denomination containing terms
and provisions that are identical to those of any temporary Notes. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
Section 3.05. Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. Such Register shall distinguish between Original Notes and
Exchange Notes. The Trustee is hereby appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
The Company shall have the right to remove and replace from time to
time the Note Registrar for the Notes; provided that no such removal or
replacement shall be effective until a successor Note Registrar with respect to
such Notes shall have been appointed by the Company and shall have accepted
such appointment by the Company. In the event that the Trustee shall not be or
shall cease to be Note Registrar with respect to the Notes, it shall have the
right to examine in the United States of America the Register for the Notes at
all reasonable times. There shall be only one Register for the Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Company in a Place of Payment, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes, of any authorized
denominations and of a like aggregate principal amount and tenor containing
identical terms and provisions. No transfer of a Note to any Person shall be
effective under this Indenture or with respect to such Note unless and until
such Note has been registered in the name of such Person.
At the option of the Holder, subject to Section 3.06, Notes may be
exchanged for other Notes bearing such restrictive legends as may be required
by this Indenture and containing identical terms and provisions in any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the Holder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and (subject to the provisions of the Original Notes regarding payment of
additional interest upon a Registration Default) entitled to the same benefits
under this Indenture, as the Notes surrendered upon such registration of
transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the Holder
thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 3.04 or 9.06 not involving any transfer.
If the beneficial owners of interests in a Global Note are entitled to
exchange such interests for Certificated Notes as the result of an event
described in Section 2.03(b), then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee Certificated Notes in such form and
denominations as are required by or pursuant to this Indenture containing
identical terms and in aggregate principal amount equal to the principal amount
of such Global Note, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such Global Note shall be surrendered
from time to time by the Depositary and in accordance with instructions given
to the Trustee and the Depositary (which instructions shall be in writing but
need not be contained in or accompanied by an Officers' Certificate or be
accompanied by an Opinion of Counsel), as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or in part, for Certificated Notes as
described above without charge.
The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Note, a like aggregate
principal amount of Certificated Notes of authorized denominations and of like
tenor as the portion of such Global Note to be exchanged, as shall be specified
by the beneficial owner thereof.
Section 3.06. Special Transfer and Exchange Provisions. Unless and
until an Original Note (i) is exchanged for an Exchange Note in connection with
an effective Registration Statement or (ii) is sold or otherwise transferred
pursuant to an effective Shelf Registration Statement, in each case pursuant to
the Registration Rights Agreement, the following provisions shall apply to each
such Note:
(a) Transfers and Exchanges of Restricted Certificated Notes and
Interests in a Rule 144A Global Note. With respect to the registration of any
proposed transfer or exchange of a Restricted Certificated Note or an interest
in a Rule 144A Global Note, if the Note to be transferred or exchanged consists
of:
(i) a Restricted Certificated Note, the Registrar shall
register the transfer or exchange to:
(A) a Rule 144A Global Note if such transfer or
exchange is being made by a proposed transferor or exchanger
who has delivered to the Company and the Registrar (x) a
certificate from the transferor or exchanger substantially in
the form of Exhibit C or (y) a certificate from the
transferee or exchangee advising the Company and the
Registrar that it is purchasing the Note for its own account
or an account with respect to which it exercises sole
investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A and
that it is aware that the transferor or exchanger is relying
upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(B) a Regulation S Global Note if such transfer or
exchange is being made by a proposed transferor or exchanger
who has delivered to the Company and the Registrar (x) a
certificate from the transferor or exchanger substantially in
the form of Exhibit D or (y) a certificate from the
transferee or exchangee advising the Company and the
Registrar that it transferred, exchanged or acquired (as
applicable) the Restricted Certificated Notes in a
transaction complying with Rule 903 or Rule 904 of Regulation
S (as applicable) under the Securities Act and that, if this
transfer or exchange occurs prior to the expiration of the
Regulation S Restricted Period, the interest transferred or
exchanged will be held immediately thereafter through
Euroclear or Clearstream; or
(C) an Unrestricted Global Note if such transfer or
exchange is being made by a proposed transferor or exchanger
who has delivered to the Company and the Registrar (x) a
certificate from the transferor or exchanger substantially in
the form of Exhibit E or (y) a certificate from the
transferee or exchangee advising the Company and the
Registrar that it transferred, exchanged or acquired (as
applicable) the Restricted Certificated Notes in a
transaction complying with Rule 903 or Rule 904 of Regulation
S (as applicable) under the Securities Act or (z) a
certificate from the transferee or exchangee advising the
Company and the Registrar that it transferred, exchanged or
acquired (as applicable) the Restricted Certificated Notes
(1) in a transaction complying with Rule 144 under the
Securities Act or (2) to the Company or a Subsidiary of the
Company.
Upon the transfer or exchange of Restricted Certificated
Notes (initially issued to an institutional accredited
investor) to a QIB or in accordance with Regulation S, these
Restricted Certificated Notes may, unless the Rule 144A
Global Note or the Regulation S Note, as the case may be, has
previously been exchanged in whole for Restricted
Certificated Notes, be exchanged for an interest in the Rule
144A Global Note or the Regulation S Note, as the case may
be. Thereafter, transfers or exchanges of this beneficial
interest will continue to be represented by a Global Note,
even if this transfer or exchange is to an institutional
accredited investor. Upon the transfer or exchange of a
Restricted Certificated Note (initially issued to an
institutional accredited investor) to an institutional
accredited investor, that Note will remain a Restricted
Certificated Note and will require the transferee or
exchangee to deliver a certificate to the Trustee
substantially in the form provided in Exhibit I; or
(ii) an interest in a Rule 144A Global Note:
(A) to be transferred or exchanged to a transferee or
exchangee who takes delivery in the form of an interest in a
Regulation S Global Note, the Registrar shall register the
transfer or exchange if such transfer or exchange is being
made by a proposed transferor or exchanger who has delivered
to the Registrar a certificate substantially in the form of
Exhibit F;
(B) to be transferred or exchanged to a transferee or
exchangee who takes delivery in the form of an interest in a
Rule 144A Global Note, the transfer or exchange of such
interest may be effected only through the book entry system
maintained by the Depositary; or
(C) to be transferred or exchanged to a transferee or
exchangee who takes delivery in the form of an interest in an
Unrestricted Global Note, the Registrar shall register the
transfer or exchange if such transfer or exchange is being
made by a proposed transferor or exchanger who has delivered
to the Registrar a certificate substantially in the form of
Exhibit G.
(b) Transfers and Exchanges of Interests in a Regulation S Global
Note. With respect to registration of any proposed transfer or exchange of an
interest in a Regulation S Global Note to a person who takes delivery in the
form of an interest in a Rule 144A Global Note, the Registrar shall register
the transfer or exchange of any Note if the proposed transferor or exchanger
has delivered to the Company and the Registrar a certificate from the
transferor or exchanger substantially in the form included in Exhibit H or a
certificate from the transferee or exchangee substantially in the form included
in Exhibit H advising the Company and the Registrar that it is purchasing the
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and that the Notes delivered to it shall bear the Rule
144A Legend and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A and that it is aware that
the transferor or exchanger is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A. The
Company shall use its best efforts to cause the Depositary to ensure that
beneficial interests in a Regulation S Global Note may be held only in or
through accounts maintained at the Depositary by or on behalf of Euroclear or
Clearstream, and no person shall be entitled to effect any transfer or exchange
that would result in any such interest being held otherwise than in or through
such account, except as provided in this Section 3.06(b); provided that after
the expiration of the Regulation S Restricted Period (but not earlier),
investors may also hold these interests through organizations other than
Euroclear and Clearstream that are participants in The Depository Trust Company
system.
(c) Transfers and Exchanges of Unrestricted Certificated Notes or
Interests in the Unrestricted Global Note. With respect to any transfer or
exchange of Unrestricted Certificated Notes or interests in the Unrestricted
Global Note, the Registrar shall register the transfer or exchange of any such
Note without requiring any additional certification.
(d) Legends. Upon the transfer, exchange or replacement of Notes
that do not bear the Rule 144A Legend or the Regulation S Legend, the Registrar
shall deliver Notes that do not bear either the Rule 144A Legend or the
Regulation S Legend. Upon the transfer, exchange or replacement of Notes
bearing the Rule 144A Legend or the Regulation S Legend, the Registrar shall
deliver only Notes that bear the Rule 144A Legend or the Regulation S Legend,
as the case may be, unless (i) the circumstances contemplated by subparagraphs
(a)(i)(C) or (a)(ii)(C) of this Section 3.06 exist or (ii) in the case of an
exchange of an interest in a Regulation S Global Note for an interest in an
Unrestricted Certificated Note, or for an Unrestricted Global Note at a time
when the Regulation S Global Note is referred to as an Unrestricted Global Note
in the manner contemplated in Section 2.03(a), or (iii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer or exchange are required in order to maintain compliance with the
provisions of the Securities Act.
(e) General. By its acceptance of any Note bearing the Rule 144A
Legend or the Regulation S Legend, each holder of such a Note acknowledges the
restrictions on transfer or exchange of such Note set forth in this Indenture
and in such restrictive legend and agrees that it will transfer or exchange
such Note only as provided in this Indenture and such restrictive legend. The
Registrar shall not register a transfer or exchange of any Note unless such
transfer or exchange complies with the restrictions on transfer or exchange of
such Note set forth in this Indenture. In connection with any transfer or
exchange of Notes, each holder agrees by its acceptance of the Notes to furnish
the Registrar or the Company with such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer or exchange is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities
Act; provided that the Registrar shall not be required to determine (but may
rely on a determination made by the Company with respect to) the sufficiency of
any such certifications, legal opinions or other information.
Section 3.07. Mutilated, Destroyed, Lost and Stolen Notes. If (i) any
mutilated Note is surrendered to the Trustee or if there shall be delivered to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of any Note and (ii) there shall be delivered to the Company and
the Trustee such indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon receipt of a Company Order the
Trustee shall authenticate and deliver, in lieu of any such mutilated,
destroyed, lost or stolen Note, a new Note containing identical terms and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
due and payable, the Company in its discretion may, instead of issuing a new
Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of or in
exchange for, as the case may be, any mutilated, destroyed, lost or stolen Note
shall constitute a separate obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture, are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
Section 3.08. Payment of Interest; Interest Rights Preserved. Interest
on any Note which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that Note
(or one or more Predecessor Notes) is registered at the close of business on
the Regular Record Date for such interest and shall be made by mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 3.09, to the address of such Person as it appears
on the Register, or in such other manner as may be mutually acceptable to the
Company and the Trustee; provided, however, upon written request by any Holder
given to the Trustee not later than 15 days prior to the Interest Payment Date,
payment of interest may be made by wire transfer in immediately available funds
at such place and to such account as may be designated by the Person entitled
thereto pursuant to said Section 3.09.
Any interest on any Note 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 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 (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest
to the Person in whose name the Notes (or their respective Predecessor
Notes) 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 Note 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 will 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 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Notes at the Holder's
address as it appears in the Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.09. Persons Deemed Owners. Prior to due presentment of a
Note for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Sections 3.05 and 3.08) interest on such Note and
for all other purposes whatsoever, whether or not any payment with respect to
such Note shall 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.
No Holder of any beneficial interest in any Global Note held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Note, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such
Global Note for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Note Registrar 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 Note or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Section 3.10. Cancellation. All Notes surrendered for payment,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee at its Corporate Trust Office and
shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever and may
deliver to the Trustee (or to an Authenticating Agent for delivery to the
Trustee) for cancellation any Notes previously authenticated hereunder which
the Company has not issued and sold, and all Notes so delivered shall be
promptly canceled by the Trustee. If the Company shall so acquire any of the
Notes, however, such acquisition shall not operate as a satisfaction of the
indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Notes held by the
Trustee shall be disposed of as directed by a Company Order or in accordance
with its customary procedures.
Section 3.11. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.12. CUSIP or ISIN Numbers. The Company in issuing the Notes
may use CUSIP or ISIN numbers (if then generally in use). The Company shall
promptly notify the Trustee of any change in the CUSIP or ISIN numbers.
ARTICLE 4
Satisfaction and Discharge
--------------------------
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to the
Notes specified in such Company Request (except as to rights of registration of
transfer or exchange of Notes herein expressly provided for), and the Trustee
on receipt of the Company Request, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(a) either
(i) all Notes theretofore authenticated and delivered (other
than (A) Notes which have been mutilated, destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.07 and
(B) Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.03) have been delivered to the Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the Trustee
for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year,
and the Company, in the case of (A) or (B) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the
Stated Maturity, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate or an Opinion of Counsel, stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such Notes have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Notes, the obligations of the Company to the Trustee under
Section 6.07, the obligations of the Trustee to any Authenticating Agent under
Section 6.13 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (i) of this Section, the obligations of the Company
under Sections 3.04, 3.05, 3.07 and 10.02, shall survive such satisfaction and
discharge.
Section 4.02. Application of Trust Money. Subject to the provisions
of the penultimate paragraph of Section 10.03, all money and Government
Obligations deposited with the Trustee pursuant to Section 4.01 and Article
Twelve shall be held in trust and applied by it, in accordance with the
provisions of the Notes for which such deposit was made 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 interest for whose payment such money
and Government Obligations has been deposited with the Trustee; but such money
and Government Obligations need not be segregated from other funds except to
the extent required by law.
ARTICLE 5
Remedies
--------
Section 5.01. Events of Default. "Event of Default," wherever used
herein with respect to the Notes, 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 interest upon any Note when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal on any Note at its
Maturity; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Notes a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced, any indebtedness for money borrowed by the Company of at least
$10 million principal amount that has not already matured in accordance with
its terms, whether such indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay any portion of the principal of
such indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Notes, a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
provided, however, that, subject to the provisions of Sections 6.01 and 6.02,
the Trustee shall not be deemed to have knowledge of such default unless either
(A) a Responsible Officer of the Trustee assigned to its Corporate Trust Office
shall have actual knowledge of such default or (B) the Trustee shall have
received written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any such mortgage,
indenture or other instrument; or
(e) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary case
or proceeding under applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under federal bankruptcy or any other applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of the property of any of them, or ordering the winding up or liquidation
of any of their affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under federal bankruptcy law or any other applicable federal or
state law, or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under federal
bankruptcy law or any other applicable federal or state law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under federal bankruptcy law or any other applicable federal or state
law, or the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of a general assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to Notes at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Notes may declare the principal
amount of all the Notes to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount shall become immediately due and
payable. If an Event of Default specified in Section 5.01(e) or (f) with
respect to Notes at the time Outstanding occurs and is continuing, then in
every such case the principal of, and any accrued interest on such Notes then
Outstanding shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Notes has been made and before the Stated Maturity thereof and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Notes, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all
Outstanding Notes;
(B) all unpaid principal of any Outstanding Notes which
have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Notes;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Notes; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(ii) all Events of Default with respect to the Notes, other than
the non-payment of the principal of Notes which have become due solely
by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if an Event of Default described in Section
5.01(a) or (b) occurs the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Notes, the whole amount then
due and payable on such Notes for principal and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal and on any overdue interest, at the rate borne by the Notes
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sum so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Notes, wherever
situated.
If an Event of Default with respect to Notes occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of the Notes by such judicial proceedings as the
Trustee shall deem appropriate to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
Section 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and to file such
other papers and documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee or to which it may become entitled under
Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding; provided that the Trustee
may, on behalf of the Holders, vote for the election of a Trustee in bankruptcy
or similar official proceeding, and be a member of a creditors' or other
similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted by the Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
6.07;
Second: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such Notes for
principal and interest, respectively; and
Third: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section 5.07. Limitation on Suits. No Holder of any Note shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Notes;
(ii) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity
reasonably acceptable to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceedings; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes.
It being understood and intended that no one or more Holders of Notes 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 right of any
other such Holders of Notes, or to obtain or to seek to obtain priority or
preference over any other such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders of Notes.
Section 5.08. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 3.08) interest on, such
Note on the respective Stated Maturities expressed in such Note and to
institute suit for the enforcement of any such payment and such rights shall
not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in the last paragraph of Section 3.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders. The Holders of more than 50% of the
principal amount of the Outstanding Notes 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 Notes, provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture or with such Notes and the Trustee shall
have been offered reasonably acceptable indemnity as therein provided;
(ii) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(iii) subject to Section 6.01, the Trustee need not take any
action which might be prejudicial to the Holders not consenting.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders of Notes.
Section 5.13. Waiver of Past Defaults. The Holders of more than 50% of
the principal amount of the Outstanding Notes may on behalf of the Holders of
all the Notes waive any past default hereunder with respect to such Notes and
its consequences, except a default:
(i) in the payment of the principal of or interest on any
Note, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist with respect
to such Notes, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Section 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Notes, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Note on or after the Stated Maturity.
Section 5.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
The Trustee
-----------
Section 6.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct; except that:
(i) this Subsection (c) shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Notes relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Notes; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 6.02. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to the Notes, the Trustee shall transmit
by mail to all Holders of Notes, as their names and addresses appear in the
Register, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of or interest on any Note,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Notes; and
provided, further, that in the case of any default of the character specified
in Section 5.01(c) with respect to the Notes 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 with respect to Notes.
Section 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture (including, without limitation,
pursuant to Section 5.12), unless such Holders shall have offered to the
Trustee indemnity reasonably acceptable to the Trustee against the costs,
expenses and liabilities which might be incurred by it or the counsel or agents
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney at the sole cost of the Company and shall incur no liability
of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be deemed to have notice of any Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by a Responsible Officer of the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture;
(i) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder;
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(k) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as duties.
Section 6.04. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Trustee's certificates
of authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder. The Trustee or
any Authenticating Agent shall not be accountable for the use or application by
the Company of Notes or the proceeds thereof.
Section 6.05. May Hold Notes. The Trustee, any Authenticating Agent,
any Paying Agent, any Note Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Section 6.12, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Note Registrar or such other agent.
Section 6.06. Money Held in Trust. Except as otherwise expressly
provided herein, money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 6.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder;
(ii) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense, including reasonable expenses
of counsel, incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder,
except to the extent that any such loss, liability or expense was due
to the Trustee's negligence or bad faith.
"Trustee" for purposes of this Section 6.07 shall include any
predecessor Trustee, but the negligence or bad faith or willful misconduct of
any Trustee shall not affect the rights or obligations of the Company or any
other Trustee hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(e) or Section 5.01(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any federal or state bankruptcy, insolvency or other
similar law.
To secure the Company's payment obligations under this Section 6.07
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Notes.
The provisions of this Section shall survive the termination of this
Indenture.
Section 6.08. Corporate Trustee Required; Eligibility. (a) There shall
at all times be a Trustee hereunder which shall:
(i) be a Corporation organized and doing business under the
laws of the United States of America, any State thereof or the
District of Columbia authorized under such laws to exercise corporate
trust powers;
(ii) be eligible under Section 310(a) of the Trust Indenture
Act to act as trustee under an indenture qualified under the Trust
Indenture Act; and
(iii) have a combined capital and surplus of at least
$100,000,000 and be subject to supervision or examination by federal
or state authority.
(b) If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(c) The Trustee shall comply with Section 310(b) of the Trust
Indenture Act regarding disqualification of a trustee upon acquiring a
conflicting interest.
Section 6.09. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10. The indemnities existing in favor of the Trustee
hereunder shall survive the Trustee's resignation or removal or termination of
this Indenture.
(b) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 6.10 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(c) The Trustee may be removed at any time with respect to the
Notes by the Company or by Act of the Holders of a majority in principal amount
of the Outstanding Notes, delivered to the Trustee, and to the Company in the
case of an Act of the Holders.
(d) If at any time:
(i) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to the Notes after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Note for at least
six months;
(ii) the Trustee shall cease to be eligible under Section
6.08 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
the Notes, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the Notes and the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Notes, the Company shall promptly appoint a successor
Trustee with respect to the Notes (it being understood that at any time there
shall be only one Trustee with respect to the Notes).
If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the
Notes shall be appointed by an Act of the Holders of a majority in principal
amount of the Outstanding Notes delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.10, become the successor Trustee with respect to the Notes and
supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Notes shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.10, any Holder who has been a bona fide Holder of a Note
for at least six months may, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Notes.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Notes and each appointment of a
successor Trustee with respect to the Notes by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of Notes as their
names and addresses appear in the Register. Each notice shall include the name
of the successor Trustee with respect to the Notes and the address of its
Corporate Trust Office.
Section 6.10. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Notes,
every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Notes, the Company, the retiring Trustee
and each successor Trustee with respect to the Notes shall execute and
deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which,
(i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Notes, and
(ii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee.
It being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
Upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Notes.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 6.11. Merger, Conversion, Consolidation or Succession to
Business. Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. Notwithstanding the foregoing, at the
request of the Trustee, the parties shall execute and deliver such writings as
the Trustee reasonably may request to reflect such succession. In case any
Notes shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes; and in case at that time any of the Notes shall not
have been authenticated, any successor Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Notes in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
Section 6.12. Preferential Claims. Reference is made to Section 311 of
the Trust Indenture Act. For purposes of Section 311(b)(4) and (6) of such Act:
(i) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(ii) "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor under the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.13. Appointment of Authenticating Agent. At any time when
any of the Notes remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to the Notes which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon original issuance,
exchange or registration of transfer or pursuant to Section 3.07, and Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in the Indenture to the authentication
and delivery of Notes 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 an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a Corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such Corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days'
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof 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 in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Notes
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to the Notes is made pursuant to this
Section, the Notes 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 Notes designated therein referred
to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By: ______________________________________
As Authenticating Agent
By:_______________________________________
Authorized Signatory
If the Notes may not be originally issued at one time, and if the
Trustee does not have an office capable of authenticating Notes upon original
issuance located in a Place of Payment where the Company wishes to have Notes
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing or by facsimile (which writing need not comply with Section
1.02 and need not be accompanied by an Opinion of Counsel), shall appoint in
accordance with this Section an Authenticating Agent having an office in a
Place of Payment designated by the Company with respect to the Notes.
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
-------------------------------------------------
Section 7.01. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee with
respect to the Notes:
(i) semi-annually, not later than each Interest Payment Date
a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding Regular Record
Date therefor, and
(ii) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Note Registrar no such
list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of the Notes contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of such Holders received by the Trustee in its capacity as
Note Registrar. The Trustee may destroy any list of the Holders of Notes
furnished to it as provided in Section 7.01 upon receipt of a new list of such
Holders.
(b) If three or more Holders of Notes (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Note for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of Notes
with respect to their rights under this Indenture or under the Notes and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
7.02(a) with respect to the Notes, or
(ii) inform such applicants as to the approximate number of
Holders of Notes whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
7.02(a), and as to the approximate cost of mailing to such Holders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Notes whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.02(a) a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Notes, 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
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.02(b).
Section 7.03. Reports by Trustee. (a) Within 60 days after June 1
of each year commencing with the year 2006, the Trustee shall transmit by mail
to all Holders, as their names and addresses appear in the Register, a brief
report, dated as of such June 1, if any, as may be required by Sections 313(a),
313(b)(2) and 313(c) of the Trust Indenture Act.
(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 any Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Notes are listed on any stock
exchange.
Section 7.04. Reports by Company. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) If the Company is no longer required (or is not required, as
the case may be) to file reports pursuant to Section 13 or 15(d) of the
Exchange Act, then it shall promptly furnish or cause to be furnished such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto) to such Holder or to a prospective
purchaser of a Note who is designated by such Holder and is a qualified
institutional buyer (as defined in Rule 144A), upon the request of such Holder
or prospective purchaser, in order to permit compliance by such Holder with
Rule 144A under the Securities Act.
(c) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(d) transmit by mail to all Holders, as their names and addresses
appear in the Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to paragraphs (a) through (c) of this Section
as may be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
Section 8.01. Company May Consolidate, Etc. on Certain Terms. The
Company shall not consolidate with or merge into any other Person or sell,
convey, transfer or lease all or substantially all of its properties and assets
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(a) (i) the Company is the continuing corporation in any such
consolidation or merger, or (ii) in case the Company shall consolidate with or
merge into another Person or sell, convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
or leases the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and interest on all the Notes and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(c) if, as a result of any such consolidation or merger or such
sale, conveyance, transfer or lease, the Company's properties and assets would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or such
successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Notes equally and ratably with (or prior
to) all indebtedness secured thereby; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.02. Successor Corporation Substituted. Upon any
consolidation or merger by the Company with or into or any conversion by the
Company into any other Corporation or any conveyance, transfer or lease of the
properties and assets of the Company as, or substantially as, an entirety to
any Person in accordance with Section 8.01, the successor Corporation formed by
such consolidation, merger or conversion or to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Corporation has been named as the Company herein, and
thereafter, except in the case of a lease to another Person, the predecessor
Corporation shall be relieved of all obligations and covenants under this
Indenture and the Notes.
ARTICLE 9
Supplemental Indentures
-----------------------
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Notes;
(b) to add to the covenants of the Company for the benefit of the
Holders of the Notes (and, if such covenants are to be for the benefit of less
than all of the Notes, stating that such covenants are expressly being included
solely for the benefit of certain Notes) or to surrender any right or power
herein conferred upon the Company;
(c) to add any additional Events of Default with respect to the
Notes;
(d) to secure the Notes;
(e) to cure any ambiguity, omission, defect or inconsistency;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.10(b);
(g) to modify the Restrictive Legends in order to ensure that such
Restrictive Legends comply with any applicable securities laws of any state of
the United States of America or any other jurisdiction;
(h) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Notes, as herein set forth;
(i) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of the Notes pursuant to Article Twelve, provided that no such
supplement shall materially adversely affect the interest of the Holders of any
Notes then Outstanding;
(j) to make any change to comply with the Trust Indenture Act, or
any amendment thereto, or to comply with any requirement of the Commission in
connection with the qualification of the Indenture under the Trust Indenture
Act, or as necessary in connection with the registration of the Notes under the
Securities Act; or
(k) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Notes then
Outstanding.
Section 9.02. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of more than a majority of the principal amount of
the Outstanding Notes affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Notes under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any such Note, or reduce the principal amount
thereof or any interest thereon, or change any Place of Payment where, or the
coin or currency in which, any such Note or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof;
(b) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture; or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 1.11, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE 10
Covenants
---------
Section 10.01. Payment of Principal and Interest. The Company
covenants and agrees for the benefit of the Holders of Notes that it will duly
and punctually pay the principal of and interest on the Notes in accordance
with the terms of the Notes and this Indenture.
Section 10.02. Maintenance of Office or Agency. The Company will
maintain in each Place of Payment for the Notes an office or agency where Notes
may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Notes for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 10.03. Money for Note Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Notes, it will, on or before each due date of the principal of or interest on
any of the Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it will, on or prior to each due date of the principal of or interest on
any Notes, deposit with a Paying Agent a sum sufficient to pay such principal
or interest, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for the Notes 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 comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and:
(i) hold all sums held by it for the payment of the principal
of or interest on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company
(or any other obligor upon the Notes) in the making of any payment,
and in respect of the Notes, of any Event of Default; and
(iii) at any time during the continuance of any such default
or Event of Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent for payment in respect of the Notes.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee (or another trustee satisfying the requirements of Section 6.08)
in respect of Government Obligations deposited with the Trustee (or such other
trustee) pursuant to Section 12.04, or then held by the Company, in trust for
the payment of the principal of or interest on any Note and remaining unclaimed
for two years after such principal or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, New York, or to
be mailed to such Holder, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the earlier of the date of such publication or such mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement by Officers as to Default. The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers' Certificate, stating
whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 10.05. Existence. Subject to Article Eight, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
Section 10.06. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
Section 10.07. Payment of Taxes and Other Claims. The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
Section 10.08. Negative Pledge. As long as Notes are Outstanding, the
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, create, assume, incur or permit to exist any Indebtedness that
is secured by any Lien on the capital stock of a Restricted Subsidiary unless
the Notes are secured equally and ratably with (or prior to) such Indebtedness
for at least the time period such Indebtedness is so secured.
Section 10.09. Limitation on Disposition. As long as Notes are
Outstanding, the Company shall not issue, sell, transfer or otherwise dispose
of any shares of capital stock of any Restricted Subsidiary, or any securities
convertible into or exercisable or exchangeable for shares of capital stock of
any Restricted Subsidiary, or warrants, rights or options to subscribe for or
purchase shares of capital stock of any Restricted Subsidiary, unless (i) such
issuance, sale, transfer or other disposition is for at least fair value (as
determined by the Board of Directors or committee thereof acting in good faith,
such action to be evidenced by a Board Resolution) ("Fair Value") and (ii) the
Company will own, directly or indirectly, at least 80% of the capital stock of
such Restricted Subsidiary after giving effect to such transaction. In
addition, the Company shall not cause or permit any Restricted Subsidiary to:
(1) merge or consolidate with or into any corporation or
other Person, unless such merger or consolidation is for at least Fair
Value and (i) the surviving corporation or Person is the Restricted
Subsidiary, or (ii) at least 80% of the surviving corporation's issued
and outstanding voting stock is owned, directly or indirectly, by such
Restricted Subsidiary; or
(2) lease, sell, assign or transfer all or substantially all
of its properties and assets to any corporation or other Person (other
than the Company), unless such lease, sale, assignment or transfer is
for at least Fair Value and at least 80% of the issued and outstanding
voting stock of that corporation or other Person is owned, directly or
indirectly, by such Restricted Subsidiary following such lease, sale
or assignment.
Notwithstanding the foregoing, the Company may merge or consolidate any of its
other Subsidiaries (including its other insurance company Subsidiaries) into or
with another of its wholly-owned Subsidiaries and the Company may sell,
transfer or otherwise dispose of its business in accordance with Section 8.01.
In addition, this Section 10.09 shall not prohibit any such issuance or
disposition of capital stock or other securities either (i) to the Company or
any Restricted Subsidiaries in accordance with applicable law or (ii) if
required by law or any regulation or order of any governmental or insurance
regulatory authority.
Section 10.10. Waiver of Certain Covenants. The Company may, with
respect to the Notes, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to Section
9.01(b) for the benefit of the Holders of Notes or in any of Sections 10.06 to
10.09, inclusive, if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Notes shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 10.11. Ability of the Company to hold Notes. The Company shall
be permitted to hold Notes or beneficial interests in the Notes for its own
account, subject to the provisions of this Indenture.
ARTICLE 11
Redemption of Notes
-------------------
Section 11.01. Redemption. The Notes may not be redeemed, in whole or
in part, at the option of either the Company or any Holder prior to the Stated
Maturity.
ARTICLE 12
Defeasance and Covenant Defeasance
----------------------------------
Section 12.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 3.01 provision is
made for either or both of (a) Defeasance of the Notes under Section 12.02 or
(b) Covenant Defeasance of the Notes under Section 12.03 to apply to Notes,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article Twelve, shall be applicable to the
Notes and the Company may at its option, at any time, with respect to the
Notes, elect to have either Section 12.02 (if applicable) or Section 12.03 (if
applicable) be applied to the Outstanding Notes upon compliance with the
conditions set forth below in this Article Twelve. Any such election shall be
evidenced by a Board Resolution.
Section 12.02. Defeasance and Discharge. Upon the Company's exercise
of its option (if any) to have this Section applied to the Notes, the Company
shall be deemed to have been discharged from its obligations with respect to
the Notes as provided in this Section on and after the date the conditions set
forth in Section 12.04 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Notes and to
have satisfied all its other obligations under the Notes and this Indenture
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of the Notes to receive, solely from the trust fund described in
Section 12.04 and as more fully set forth in such Section, payments in respect
of the principal of and interest on the Notes when payments are due, (2) the
Company's obligations with respect to the Notes under Sections 3.04, 3.05,
3.07, 6.07, 10.02 and 10.03, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article. Subject to compliance
with this Article, the Company may exercise its option (if any) to have this
Section applied to the Notes notwithstanding the prior exercise of its option
(if any) to have Section 12.03 applied to the Notes.
Section 12.03. Covenant Defeasance. Upon the Company's exercise of its
option (if any) to have this Section applied to the Notes, (1) the Company
shall be released from its obligations under Section 8.01(c), Sections 10.06
through 10.10, inclusive, and any covenants provided pursuant to Section
9.01(b) for the benefit of the Holders of the Notes, and (2) the occurrence of
any event specified in Sections 5.01(c) (with respect to any of Section
8.01(c), Sections 10.06 through 10.10, inclusive, and any such covenants
provided pursuant to Section 9.01(b)), shall be deemed not to be or result in
an Event of Default, in each case with respect to the Notes as provided in this
Section on and after the date the conditions set forth in Section 12.04 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to the Notes, the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 5.01(c)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 12.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 12.02 or
Section 12.03 to the Outstanding Notes.
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.08 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for the benefit of, and
dedicated solely to, the Holders of the Notes, (A) money in an amount, or (B)
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and interest and any other
amounts due on the Notes on the Stated Maturity, in accordance with the terms
of this Indenture and the Notes.
(b) In the event of an election to have Section 12.02 apply to the
Notes, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date of this instrument,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Notes will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Notes and will be subject to
Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not to
occur.
(c) In the event of an election to have Section 12.03 apply to the
Notes, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Notes will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to the Notes and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(d) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Notes shall have occurred
and be continuing at the time of such deposit or, with regard to any such event
specified in Sections 5.01(e) and (f), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(e) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(f) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 12.05. Deposited Money and Government Obligations to be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.03, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 12.06, the Trustee and any
such other trustee are referred to collectively as the "Trustee") pursuant to
Section 12.04 in respect of the Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Notes and this Indenture, to
the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of the Notes, of all sums due and to become due thereon in respect of
principal and interest, but money so held in trust need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 12.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
12.04 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case
may be, with respect to the Notes.
Section 12.06. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to the
Notes by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and the Notes from which the Company has been
discharged or released pursuant to Section 12.02 or 12.03 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to the Notes, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 12.05 with
respect to the Notes in accordance with this Article; provided, however, that
if the Company makes any payment of principal of or interest on the Notes
following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of the Notes to receive such
payment from the money so held in trust.
Section 12.07. Qualifying Trustee. Any trustee appointed pursuant to
Section 12.04 for the purpose of holding trust funds deposited pursuant to that
Section shall be appointed under an agreement in form acceptable to the Trustee
and shall provide to the Trustee a certificate of such trustee, upon which
certificate the Trustee shall be entitled to conclusively rely, that all
conditions precedent provided for herein to the related Defeasance or Covenant
Defeasance have been complied with. In no event shall the Trustee be liable for
any acts or omissions of said trustee.
__________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first above written.
SELECTIVE INSURANCE GROUP, INC.,
Issuer
Attest:
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxx
---------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President, General Title: Executive Vice President &
Counsel & Corporate Secretary Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx X'Xxxxx
-------------------------------
Name: Xxxx X'Xxxxx
Title: Vice President
EXHIBIT A
FORM OF FACE OF CERTIFICATED NOTE
[If this is a Restricted Certificated Note, add the following Rule
144A Legend: THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST DATE ON
WHICH SELECTIVE INSURANCE GROUP, INC. OR ANY "AFFILIATE" (AS DEFINED IN RULE
144 UNDER THE SECURITIES ACT) OF SELECTIVE INSURANCE GROUP, INC. WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION
DATE") EXCEPT (A) TO SELECTIVE INSURANCE GROUP, INC. OR A SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (E) IN A MINIMUM AGGREGATE PRINCIPAL
AMOUNT OF $100,000 TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF
THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS
PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES
WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT SELECTIVE INSURANCE GROUP, INC. AND THE TRUSTEE SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, BUT ONLY IF THIS NOTE IS NOT A GLOBAL NOTE (AS DEFINED IN THE
INDENTURE REFERRED TO HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO SELECTIVE INSURANCE GROUP, INC. AND THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE
TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.]
REGISTERED PRINCIPAL AMOUNT:
No. 1 $100,000,000
SELECTIVE INSURANCE GROUP, INC.
6.70% Senior Note due 2035
Selective Insurance Group, Inc., a New Jersey corporation (the
"Company" which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay
__________or registered assigns, the principal sum of _________ DOLLARS on
November 1, 2035 (the "Maturity Date") and to pay interest thereon from
November 3, 2005 or from the most recent "Interest Payment Date" to which
interest has been paid or duly provided for, semi-annually on May 1 and
November 1 of each year, commencing May 1, 2006, and on the Maturity Date, at
the rate of 6.70% per annum, until the principal hereof is paid or duly
provided for; provided that if any Registration Default with respect to this
Note occurs under the Registration Rights Agreement, then the per annum
interest rate on this Note will increase for the period from the occurrence of
such Registration Default until such time as no Registration Default is in
effect with respect to this Note (at which time the interest rate will be
reduced to its initial rate) at a per annum rate of 0.25% for the first 90-day
period following the occurrence of such Registration Default, and by an
additional 0.25% thereafter (up to a maximum of 0.50%). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the "Regular Record Date" for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date. [if this Note is an Original Note, then
insert - ; provided that any accrued and unpaid interest (including any
additional interest payable upon the occurrence of a Registration Default) on
this Note upon the issuance of an Exchange Note in exchange for this Note shall
cease to be payable to the Holder hereof and shall be payable on the next
Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date.] Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Notes) 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 referred to on the reverse hereof, notice of which
shall be given to Holders of Notes 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 Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The Company will at all times appoint and maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of
and interest on any Notes on behalf of the Company and having an office or
agency in New York, New York and in such other cities, if any, as the Company
may designate in writing to the Trustee (the "Place of Payment") where Notes
may be presented or surrendered for payment and where notices, designations or
requests in respect for payments with respect to Notes may be served. The
Company has initially appointed Wachovia Bank, National Association, First
Xxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, as such Paying Agent
Interest payments on this Note will be computed and paid on the basis
of a 360-day year of twelve 30-day months. Interest payable on this Note on any
Interest Payment Date and on the Maturity Date will include interest accrued
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for (or from and including November 3, 2005, if no
interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day (as defined below), principal or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be,
will be paid on the next succeeding Business Day with the same force and effect
as if it were paid on the date such payment was due, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be. "Business Day" means any
day other than Saturday, Sunday or other day on which banking institutions in
New York are obligated or authorized by law to close.
Payment 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 of
the principal of and interest on this Note will be made, subject to surrender
of this Note in the case of payment of principal at the office or agency of the
Company maintained for that purpose in The City of New York, by mailing a check
for such principal or interest payable to or upon the written order of the
Person entitled thereto pursuant to Section 3.09 of such Indenture, to the
address of such Person as it appears on the Register, or in such other manner
as may be mutually acceptable to the Company and the Trustee; provided,
however, upon written request by any Holder given to the Trustee not later than
15 days prior to the Stated Maturity of principal or interest, payment of
principal or interest due at the Stated Maturity may be made, subject to
surrender of this Note in the case of payment of principal, by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto pursuant to said Section 3.09.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, 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 by manual signature, this Note 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.
SELECTIVE INSURANCE GROUP, INC.
By:_______________________________
Name:
Title:
Attest:
By:______________________________
Name:
Title:
Certificate of Authentication
This is one of the Global Notes described in the within-mentioned
Indenture.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By: __________________________
Authorized Signatory
Dated: November 3, 2005
FORM OF REVERSE OF CERTIFICATED NOTE
SELECTIVE INSURANCE GROUP, INC.
6.70% Senior Note due 2035
This Note is one of a duly authorized issue of notes of the Company
(herein called the "Notes"), issued under an Indenture (the "Indenture") dated
as of November 3, 2005 among the Company and Wachovia Bank, National
Association, as Trustee (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 Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof, limited initially in aggregate principal amount
to US$100,000,000. Capitalized terms used herein but not defined have the
meanings ascribed to such terms in the Indenture.
This Note is not subject to any sinking fund.
This Note is not subject to redemption prior to the Maturity Date.
In case an Event of Default with respect to the Notes shall occur and
be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
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 Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority of the principal amount of the Notes at the time
Outstanding or the consent of at least a majority of the principal amount of
Notes to be affected if less than all the Notes are to be affected by such
modification or amendment. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all Notes, 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 Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note or Notes issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note 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 Note
at the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, the transfer of this Note is registrable in the
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar, duly executed by the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
[IF THE NOTE IS NOT A RESTRICTED CERTIFICATED NOTE, THEN INSERT: The
Notes are issuable only in registered form, without coupons, in denominations
of $1,000 and any integral multiple thereof.]
[IF THE NOTE IS A RESTRICTED CERTIFICATED NOTE, THEN INSERT: The Notes
are issuable only in registered form, without coupons, and in denominations of
$100,000 and integral multiples of $1,000 in excess thereof.]
As provided in the Indenture and subject to certain limitations herein
and therein set forth, Notes are exchangeable for the same aggregate principal
amount of Notes of like tenor and authorized denominations, as requested by the
Holder surrendering the same.
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 due presentment of this Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or director, as such, of the
Company or of any successor thereto, either directly or through the Company or
any successor thereto, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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.
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
_____________________________________________________________________________
_____________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
_____________________________________________________________________________
Please Print or Type Name and Address including Postal Zip Code of
Assignee:
_____________________________________________________________________________
_____________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably
_____________________________________________________________________________
constitutes and appoints to transfer said Note on the books of the Company,
with full power of substitution in the premises.
Dated: ________________________
Signature Guaranteed
_________________________________________
NOTICE: Signature must be guaranteed NOTICE: The signature to this
by a member firm of the New York Stock assignment must correspond with the
Exchange or a commercial bank or trust name as written upon the face of the
company. within Note in every particular,
without alteration or enlargement or
any change whatever.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL RESTRICTED CERTIFICATED
NOTES ONLY.]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
two years after the later of the original issuance of this Note or the last
date on which this Note was held by the Company or an Affiliate of the Company,
the undersigned confirms that without utilizing any general solicitation or
general advertising that:
Check one
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder;
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other
Registrar shall not be obligated to register this Note in the name of any
Person other than the Noteholder hereof unless and until the conditions to any
such transfer or registration set forth herein and in Section 3.06 of the
Indenture shall have been satisfied.
Date:_____________ _______________________
EXHIBIT B
FORM OF GLOBAL NOTE
[If this is a Rule 144A Global Note, add the following Rule 144A
Legend: THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THE NOTES AND THE LAST DATE ON
WHICH SELECTIVE INSURANCE GROUP, INC. OR ANY "AFFILIATE" (AS DEFINED IN RULE
144 UNDER THE SECURITIES ACT) OF SELECTIVE INSURANCE GROUP, INC. WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) OR (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION
DATE") EXCEPT (A) TO SELECTIVE INSURANCE GROUP, INC. OR A SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (E) IN A MINIMUM AGGREGATE PRINCIPAL
AMOUNT OF $100,000 TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPHS (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF
THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS
PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES
WITHIN ITS OR THEIR CONTROL, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT SELECTIVE INSURANCE GROUP, INC. AND THE TRUSTEE SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, BUT ONLY IF THIS NOTE IS NOT A GLOBAL NOTE (AS DEFINED IN THE
INDENTURE REFERRED TO HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO SELECTIVE INSURANCE GROUP, INC. AND THE TRUSTEE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE
TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.]
If this is a Regulation S Global Note, add the following Regulation S
Legend: THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A "U.S. PERSON"
(AS DEFINED IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT), (2)
AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE PRIOR TO THE DATE
WHICH IS 40 DAYS AFTER THE ORIGINAL ISSUE DATE OF THE NOTES (THE "REGULATION S
RESTRICTED PERIOD") EXCEPT (A) TO SELECTIVE INSURANCE GROUP, INC., OR A
SUBSIDIARY THEREOF (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH
CASE TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
SELECTIVE INSURANCE GROUP, INC. AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, BUT ONLY
IF THIS NOTE IS NOT A GLOBAL NOTE (AS DEFINED IN THE INDENTURE REFERRED TO
HEREIN), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
SELECTIVE INSURANCE GROUP, INC. AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE TERMINATION OF THE REGULATION S
RESTRICTED PERIOD FOLLOWING COMPLIANCE WITH THE CERTIFICATION REQUIREMENTS SET
FORTH IN THE INDENTURE.]
Xx.0 XXXXX Xx. [000000 XX 7] [Rule 144A]
[U81489 AB 9] [Reg S]
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate issued in exchange for this certificate or any portion hereof is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of DTC),
any transfer, pledge or other use hereof for value or otherwise by or to any
person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
SELECTIVE INSURANCE GROUP, INC.
[RULE 144A GLOBAL NOTE]
[REGULATION S GLOBAL NOTE]
[GLOBAL EXCHANGE NOTE]
representing up to
US$100,000,000
6.70% Senior Notes due 2035
Selective Insurance Group, Inc., a New Jersey Corporation, (the
"Company" which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay
Cede & Co.
C/O The Depository Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or registered assigns, the principal sum set forth on Schedule 1
hereto on November 1, 2035 (the "Maturity Date") and to pay interest thereon
from November 3, 2005 or from the most recent "Interest Payment Date" to which
interest has been paid or duly provided for, semi-annually on May 1 and
November 1 of each year, commencing May 1, 2006, and on the Maturity Date, at
the rate of 6.70% per annum, until the principal hereof is paid or duly
provided for; provided that if any Registration Default with respect to this
Note occurs under the Registration Rights Agreement, then the per annum
interest rate on this Note will increase for the period from the occurrence of
such Registration Default until such time as no Registration Default is in
effect with respect to this Note (at which time the interest rate will be
reduced to its initial rate) at a per annum rate of 0.25% for the first 90-day
period following the occurrence of such Registration Default, and by an
additional 0.25% thereafter (up to a maximum of 0.50%). The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business
on the "Regular Record Date" for such interest, which shall be the April 15 or
October 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date. [if this Note is an Original Note, then
insert - ; provided that any accrued and unpaid interest (including any
additional interest payable upon the occurrence of a Registration Default) on
this Note upon the issuance of an Exchange Note in exchange for this Note shall
cease to be payable to the Holder hereof and shall be payable on the next
Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date.] Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Notes) 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 referred to on the reverse hereof, notice of which
shall be given to Holders of Notes 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 Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The Company will at all times appoint and maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of
and interest on any Notes on behalf of the Company and having an office or
agency in New York, New York and in such other cities, if any, as the Company
may designate in writing to the Trustee (the "Place of Payment") where Notes
may be presented or surrendered for payment and where notices, designations or
requests in respect for payments with respect to Notes may be served. The
Company has initially appointed Wachovia Bank, National Association, First
Xxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, as such Paying Agent.
Interest payments on this Note will be computed and paid on the basis
of a 360-day year of twelve 30-day months. Interest payable on this Note on any
Interest Payment Date and on the Maturity Date will include interest accrued
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for (or from and including November 3, 2005, if no
interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day (as defined below), principal or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be,
will be paid on the next succeeding Business Day with the same force and effect
as if it were paid on the date such payment was due, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be. "Business Day" means any
day other than Saturday, Sunday or other day on which banking institutions in
New York are obligated or authorized by law to close.
Payment 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 of
the principal of and interest on this Note will be made, subject to surrender
of this Note in the case of payment of principal at the office or agency of the
Company maintained for that purpose in The City of New York, by mailing a check
for such principal or interest payable to or upon the written order of the
Person entitled thereto pursuant to Section 3.09 of such Indenture, to the
address of such Person as it appears on the Register, or in such other manner
as may be mutually acceptable to the Company and the Trustee; provided,
however, upon written request by any Holder given to the Trustee not later than
15 days prior to the Stated Maturity of principal or interest, payment of
principal or interest due at the Stated Maturity may be made, subject to
surrender of this Note in the case of payment of principal, by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto pursuant to said Section 3.09.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, 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 by manual signature, this Note 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.
SELECTIVE INSURANCE GROUP, INC.
By:____________________________________
Name:
Title:
Attest:
By:______________________________
Name:
Title:
Certificate of Authentication
-----------------------------
This is one of the Global Notes described in the within-mentioned
Indenture.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:________________________________
Authorized Signatory
Dated:
FORM OF REVERSE OF GLOBAL NOTE
SELECTIVE INSURANCE GROUP, INC.
6.70% Senior Note due 2035
This Note is one of a duly authorized issue of notes of the Company
(herein called the "Notes"), issued under an Indenture (the "Indenture") dated
as of November 3, 2005 among the Company and Wachovia Bank, National
Association, as Trustee (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 Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof, limited initially in aggregate principal amount
to US$100,000,000. Capitalized terms used herein but not defined have the
meanings ascribed to such terms in the Indenture.
This Note is not subject to any sinking fund.
This Note is not subject to redemption prior to the Maturity Date.
In case an Event of Default with respect to the Notes shall occur and
be continuing, the principal of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
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 Notes to be affected under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least a majority of the principal amount of the Notes at the time
Outstanding or the consent of at least a majority of the principal amount of
the Notes to be affected if less than all the Notes are to be affected by such
modification or amendment. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all Notes, 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 Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note or Notes issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note 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 Note
at the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, the transfer of this Note is registrable in the
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar, duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations herein and therein set forth,
Notes are exchangeable for the same aggregate principal amount of Notes and of
like tenor and authorized denominations, as requested by the Holder
surrendering the same.
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 due presentment of this Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer or director, as such, of the
Company or of any successor thereto, either directly or through the Company or
any successor thereto, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Schedule 1
SCHEDULE OF CHANGES IN OUTSTANDING PRINCIPAL AMOUNT
The following notations in respect of changes in the outstanding
principal amount of this Global Note have been made:
Change in Outstanding New Notation
Date Initial Principal Amount Principal Amount Balance Made by
------------ ------------------------ --------------------- ----------------- --------------
$100,000,000
------------ ------------------------ --------------------- ----------------- --------------
EXHIBIT C
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RESTRICTED CERTIFICATED
NOTE TO RULE 144A GLOBAL NOTE
(Transfers and exchanges pursuant to ss. 3.06(a)(i)(A) of the Indenture)
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 Selective Insurance
Group, Inc. (the "Notes")
-----------------------------------------------
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes
presented or surrendered on the date hereof (the "Surrendered Notes") which are
registered in the name of [insert name of transferor/exchanger] (the
"Transferor"). The Transferor has requested a transfer or exchange of such
Surrendered Notes to a person that will take delivery thereof in the form of an
equal principal amount of Notes evidenced by one or more Rule 144A Global Notes
(CUSIP No. 816300 AE 7).
In connection with such request and in respect of such Surrendered
Notes, the Transferor does hereby certify that such transfer or exchange is
being effected pursuant to and in accordance with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor does hereby further certify that the Surrendered Notes are being
transferred to a person that the Transferor reasonably believes is purchasing
the Surrendered Notes for its own account, or for one or more accounts with
respect to which such person exercises sole investment discretion, and such
person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in each case in a transaction meeting the requirements of
Rule 144A, and in accordance with any applicable securities laws of any state
of the United States of America or any other jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the Notes being transferred.
[Insert Name of Transferor]
By: _________________________________
Name:
Title:
Dated: ______________________________
cc: Selective Insurance Group, Inc.
EXHIBIT D
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RESTRICTED CERTIFICATED
NOTE TO REGULATION S GLOBAL NOTE
(Transfers and exchanges pursuant to ss. 3.06(a)(i)(B) of the Indenture)
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 of Selective Insurance
Group, Inc. (the "Notes")
--------------------------------------------------
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes
presented or surrendered on the date hereof (the "Surrendered Notes") which are
registered in the name of [insert name of transferor/exchanger] (the
"Transferor"). The Transferor has requested a transfer or exchange of such
Surrendered Notes to a person that will take delivery thereof in the form of an
equal principal amount of Notes evidenced by one or more Regulation S Global
Notes (CUSIP No. U81489 AB 9), which amount, immediately after such transfer,
is to be held with the Depositary through Euroclear or Clearstream or both
(Common Code: ).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
pursuant to and in accordance with Rule 903 or Rule 904 (as applicable) under
the Securities Act of 1933, as amended (the "Securities Act"), and accordingly
the Transferor does hereby further certify that:
(1) the offer of the Notes was not made to a person in the United
States of America;
(2) either:
(A) at the time the buy order was originated, the transferee
or exchangee was outside the United States of America or the
Transferor and any person acting on its behalf reasonably
believed that the transferee or exchangee was outside the
United States of America, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was pre-arranged with a buyer in
the United States of America;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the Notes being
transferred as described above are to be held with the
Depositary through Euroclear or Clearstream or both (Common
Code).
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters or initial
purchasers, if any, of the initial offering of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated: _____________________________
cc: Selective Insurance Group, Inc.
EXHIBIT E
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RESTRICTED CERTIFICATED
NOTE TO UNRESTRICTED GLOBAL NOTE
(Transfers and exchanges pursuant to ss. 3.06(a)(i)(C) of the Indenture)
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 of Selective Insurance
Group, Inc. (the "Notes")
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes
presented or surrendered on the date hereof (the "Surrendered Notes") which are
registered in the name of [insert name of transferor/exchanger] (the
"Transferor"). The Transferor has requested a transfer or exchange of such
Surrendered Notes to a person that will take delivery thereof in the form of an
equal principal amount of Notes evidenced by one or more Unrestricted Global
Notes (CUSIP No. [ ]).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
to the Company or a subsidiary thereof or pursuant to and in accordance with
either (i) Rule 903 or Rule 904 (as applicable) under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) Rule 144 under the Securities
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer or exchange has been effected pursuant to
Rule 903 or Rule 904:
(A) the offer of the Notes was not made to a person in the
United States of America;
(B) either:
(i) at the time the buy order was originated, the
transferee or exchangee was outside the United
States of America or the Transferor and any person
acting on its behalf reasonably believed that the
transferee or exchangee was outside the United
States of America, or
(ii) the transaction was executed in, on or through
the facilities of a designated offshore securities
market and neither the Transferor nor any person
acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States of
America;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; or
(2) if the transfer or exchange has been effected pursuant to
Rule 144, the Notes have been transferred in a transaction
permitted by Rule 144.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated: _____________________________
cc: Selective Insurance Group, Inc.
EXHIBIT F
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RULE 144A GLOBAL
NOTE TO REGULATION S GLOBAL NOTE
(Transfers and exchanges pursuant to ss. 3.06(a)(ii)(A) of the Indenture)
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 of Selective Insurance
Group, Inc. (the "Notes")
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes which
are evidenced by one or more Rule 144A Global Notes (CUSIP No. 816300 AE 7) and
held with the Depositary in the name of [insert name of transferor/exchanger]
(the "Transferor"). The Transferor has requested a transfer or exchange of such
beneficial interest in the Notes to a person who will take delivery thereof in
the form of an equal principal amount of Notes evidenced by one or more
Regulation S Global Notes (CUSIP No. U81489 AB 9) which amount, immediately
after such transfer, is to be held with the Depositary through Euroclear or
Clearstream or both (Common Code): [ ].
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
pursuant to and in accordance with Rule 903 or Rule 904 (as applicable) under
the Securities Act of 1933, as amended (the "Securities Act"), and accordingly
the Transferor does hereby further certify that:
(1) the offer of the Notes was not made to a person in the United
States of America;
(2) either:
(A) at the time the buy order was originated, the transferee
or exchangee was outside the United States of America or the
Transferor and any person acting on its behalf reasonably
believed that the transferee or exchangee was outside the
United States of America, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States of America;
(3) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the
Depositary through Euroclear or Clearstream or both.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters or initial
purchasers, if any, of the initial offering of such Notes being transferred or
exchanged. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:______________________________
Name:
Title:
Dated:___________________________
cc: Selective Insurance Group, Inc.
EXHIBIT G
FORM OF TRANSFER/EXCHANGE CERTIFICATE
FOR TRANSFER/EXCHANGE FROM RULE 144A GLOBAL
NOTE TO UNRESTRICTED GLOBAL NOTE
(Transfers and exchanges pursuant to ss. 3.06(a)(ii)(C) of the Indenture)
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 of Selective Insurance
Group, Inc. (the "Notes")
--------------------------------------------------
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes which
are evidenced by one or more Rule 144A Global Notes (CUSIP No. 816300 AE 7) and
held with the Depositary in the name of [insert name of transferor/exchanger]
(the "Transferor"). The Transferor has requested a transfer or exchange of such
beneficial interest in the Notes to a person that will take delivery thereof in
the form of an equal principal amount of Notes evidenced by one or more
Unrestricted Global Notes (CUSIP No. [ ]).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange has been effected
to the Company or a subsidiary thereof or pursuant to and in accordance with
either (i) Rule 903 or Rule 904 (as applicable) under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) Rule 144 under the Securities
Act, and accordingly the Transferor does hereby further certify that:
(1) if the transfer or exchange has been effected pursuant to
Rule 903 or Rule 904:
(A) the offer of the Notes was not made to a person in the
United States of America;
(B) either:
(i) at the time the buy order was originated, the
transferee or exchangee was outside the United
States of America or the Transferor and any person
acting on its behalf reasonably believed that the
transferee or exchangee was outside the United
States, or
(ii) the transaction was executed in, on or through
the facilities of a designated offshore securities
market and neither the Transferor nor any person
acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States of
America;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; or
(2) if the transfer or exchange has been effected pursuant to
Rule 144, the Notes have been transferred in a transaction
permitted by Rule 144.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the Notes being transferred. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:_________________________________
Name:
Title:
Dated: _____________________________
cc: Selective Insurance Group, Inc.
EXHIBIT H
FORM OF TRANSFER/EXCHANGE CERTIFICATES
FOR TRANSFER/EXCHANGE FROM REGULATION S GLOBAL
NOTE TO RULE 144A GLOBAL NOTE
(Transfers and exchanges pursuant to ss. 3.06(b) of the Indenture)
Transferor Certificate
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 of Selective Insurance
Group, Inc. (the "Notes")
--------------------------------------------------
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes which
are evidenced by one or more Regulation S Global Notes (CUSIP No. U81489 AB9)
and held with the Depository though [Euroclear] [Clearstream] (Common Code: )
in the name of [insert name of transferor/exchanger] (the "Transferor"). The
Transferor has requested a transfer or exchange of such beneficial interest in
Notes to a person that will take delivery thereof (the "Transferee") in the
form of an equal principal amount of Notes evidenced by one or more Rule 144A
Global Notes (CUSIP No. 816300 AE 7).
In connection with such request and in respect of such Notes, the
Transferor does hereby certify that such transfer or exchange is being effected
pursuant to and in accordance with Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, the Transferor does hereby
further certify that the Surrendered Notes are being transferred to a person
that the Transferor reasonably believes is purchasing the Surrendered Notes for
its own account, or for one or more accounts with respect to which such person
exercises sole investment discretion, and such person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A, in each case
in a transaction meeting the requirements of Rule 144A, and in accordance with
any applicable securities laws of any state of the United States of America or
any other jurisdiction.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the Notes being transferred.
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated: _____________________________
cc: Selective Insurance Group, Inc.
Transferee Certificate
Wachovia Bank, National Association
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Dept.
Re: 6.70% Senior Notes due 2035 of Selective
Insurance Group, Inc. (the "Notes")
----------------------------------------
Reference is hereby made to the Indenture, dated as of November 3,
2005 (the "Indenture"), among Selective Insurance Group, Inc. (the "Company")
and Wachovia Bank, National Association, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to US$100,000,000 principal amount of Notes which
are evidenced by one or more Regulation S Global Notes (CUSIP No. U81489 AB 9)
and held with the Depository through [Euroclear] [Clearstream] (Common Code: )
in the name of [insert name of transferor/exchanger] (the "Transferor"). The
Transferor has requested a transfer or exchange of such beneficial interest in
Notes [insert name of transferee/exchangee] (the "Transferee") in the form of
an equal principal amount of Notes evidenced by one or more Rule 144A Global
Notes (CUSIP No. 816300 AE 7).
In connection with such request and in respect of such Notes, the
Transferee does hereby certify that it is purchasing the Notes for its own
account, or for one or more accounts with respect to which the Transferee
exercises sole investment discretion, and the Transferee and each such account
is a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act (a "QIB").
The Transferee hereby agrees that any future resale, pledge, transfer
or exchange of such Notes may be made only (i) to the Company, (ii) to a person
who the seller reasonably believes is a QIB in a transaction meeting the
requirements of Rule 144A, (iii) in an offshore transaction complying with Rule
903 or Rule 904 (as applicable) of Regulation S under the Securities Act, (iv)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if available), (v) pursuant to any other available exemption from the
registration requirements under the Securities Act (provided that as a
condition to the registration of transfer or exchange of any such Notes
pursuant to this clause (v) the Company or the Trustee may require delivery of
any documents or other evidence (including but not limited to an opinion of
counsel) that it, in its sole discretion, may deem necessary or appropriate to
evidence compliance with such exemption), or (vi) pursuant to an effective
registration statement under the Securities Act, and in each of such cases in
accordance with any applicable securities laws of any state of the United
States of America. The Transferee will notify any purchaser of Notes from it of
the resale restrictions referred to above, if then applicable.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the underwriters and initial
purchasers, if any, of the Notes being transferred.
[Insert Name of Transferor]
By: ____________________________
Name:
Title:
Dated:__________________________
cc: Selective Insurance Group, Inc.
EXHIBIT I
FORM OF PURCHASER'S LETTER
Selective Insurance Group, Inc.
c/o [ ]
00 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Dear Sirs:
In connection with our proposed purchase of $100,000,000 aggregate
principal amount of the 6.70% Senior Notes due 2035 (the "Notes") of Selective
Insurance Group, Inc., a New Jersey corporation (the "Company"), we confirm
that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act")) purchasing
for our own account and we are acquiring the Notes for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act or other
applicable securities law and we have the knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act or any other applicable securities
law and may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities Act or
any other applicable securities law, or pursuant to an exemption
therefrom, or in a transaction not subject thereto, and in each case
in compliance with the conditions for transfer or exchange set forth
below. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise
transfer or exchange these Notes prior to (x) the date which is two
years (or that shorter period of time as permitted by Rule 144(k)
under the Securities Act) after the later of the date of original
issue of the Notes and the last date on which the Company or any
"affiliate" (as defined in Rule 144 under the Securities Act) of the
Company was the owner of these Notes (or any predecessor thereto) or
(y) that later date, if any, as may be required by applicable law (the
"Resale Restriction Termination Date") only (a) to the Company or a
subsidiary thereof, (b) pursuant to a registration statement which has
been declared effective under the Securities Act, (c) for so long as
the Notes are eligible for resale pursuant to Rule 144A to a person we
reasonably believe is a "Qualified Institutional Buyer" within the
meaning of Rule 144A (a "QIB") that purchases for its own account or
for the account of a QIB, in each case to whom notice is given that
the transfer or exchange is being made in reliance on Rule 144A, (d)
in an offshore transaction in accordance with Rule 903 or Rule 904 of
Regulation S, (e) in a minimum aggregate principal amount of $100,000
to an institutional "accredited investor" within the meaning of
subparagraphs (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act that is acquiring the Notes for its own account for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act or (f)
pursuant to any other available exemption from the registration
requirements of the Securities Act, subject in each of the foregoing
cases to any requirement of law that the disposition of our property
or the property of these investor accounts or accounts be at all times
within our or their control and to compliance with any applicable
state or other securities laws. If any resale or other transfer or
exchange of the Notes is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor
or exchanger shall deliver to the trustee under the Indenture pursuant
to which the Notes are issued (the "Trustee") a letter from the
transferee or exchangee substantially in the form of this letter,
which shall provide, among other things, that the transferee or
exchangee is an institutional "accredited investor" as defined in
paragraph 1 of this letter and that it is acquiring these Notes for
investment purposes and not for distribution in violation of the
Securities Act. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. We acknowledge
that the Company and the Trustee reserve the right prior to any offer,
sale, transfer or exchange of the Notes pursuant to clauses (d), (e)
or (f) above prior to the Resale Restriction Termination Date to
require the delivery of an opinion of counsel, certifications and/or
other information satisfactory to the Company and the Trustee.
3. We are acquiring the Notes purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion.
4. You and the initial purchasers of the Notes are entitled
to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
Very truly yours,
By: [Name of Purchaser]
Date:
Upon transfer or exchange the Notes would be registered in the name of
the new owner as follows:
Taxpayer I.D.
Name Address Number
----------------------- --------------------------- --------------------
