1
Exhibit 4.7
================================================================================
LIFE RE CORPORATION
------------------------------
------------------------------
INDENTURE
DATED AS OF MARCH __, 1998
------------------------------
THE BANK OF NEW YORK
AS TRUSTEE
------------------------------
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
================================================================================
2
CROSS-REFERENCE TABLE(1)
of provisions of the Trust Indenture Act of 1939 with Indenture dated as of
March __, 1998 between Life Re Corporation and The Bank of New York, as Trustee:
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1)..................................................................6.09
310(a)(2) .................................................................6.09
310(a)(3)...................................................................N/A
310(a)(4)...................................................................N/A
310(a)(5)............................................................6.10, 6.11
310(b).....................................................................6.08
310(c)......................................................................N/A
311(a) and (b).............................................................6.13
311(c)......................................................................N/A
312(a)............................................................4.01, 4.02(a)
312(b) and (c).............................................................4.02
313(a).....................................................................4.04
313(b)(1)..................................................................4.04
313(b)(2)..................................................................4.04
313(c).....................................................................4.04
313(d).....................................................................4.04
314(a)...............................................................3.05, 4.03
314(b)......................................................................N/A
314(c)(1) and (2)...................................................6.07, 13.06
314(c)(3)...................................................................N/A
314(d) .....................................................................N/A
314(e).....................................................................6.07
314(f) .....................................................................N/A
315(a),(c) and (d).........................................................6.01
315(b) ....................................................................5.08
315(e) ....................................................................5.09
316(a)(1) .................................................................5.07
316(a)(2) ..................................................................N/A
316(a) (last sentence).....................................................2.09
316(b) ....................................................................9.02
317(a) ..............................................................5.02, 5.05
317(b) ....................................................................6.05
318(a) ...................................................................13.08
--------------------
(1) THIS CROSS-REFERENCE TABLE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
PART OF THE INDENTURE.
3
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS........................... 1
SECTION 1.01. Definitions............................................. 1
Additional Sums.......................................................... 1
Affiliate................................................................ 1
Applicable Put Price..................................................... 2
Authenticating Agent..................................................... 2
Bankruptcy Law........................................................... 2
Board of Directors....................................................... 2
Board Resolution......................................................... 2
Business Day............................................................. 2
Commission............................................................... 2
Common Trust Securities.................................................. 2
Common Trust Securities Guarantee........................................ 2
Common Stock............................................................. 2
Company.................................................................. 3
Company Request.......................................................... 3
Comparable Treasury Issue................................................ 3
Comparable Treasury Price................................................ 3
Compounded Interest...................................................... 3
Coupon Rate.............................................................. 3
Custodian................................................................ 3
Declaration.............................................................. 3
Default.................................................................. 3
Defeasance Agent......................................................... 3
Deferred Interest........................................................ 3
Definitive Securities.................................................... 3
Depositary............................................................... 3
Discharged............................................................... 4
Dissolution Event........................................................ 4
Effective Call Option Price.............................................. 4
Event of Default......................................................... 4
Exchange Act............................................................. 4
Extended Interest Payment Period......................................... 4
Final Put Date........................................................... 4
Global Security.......................................................... 4
-----------------
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A
PART OF THE INDENTURE.
i
4
Page
Indenture................................................................. 4
Interest Payment Date..................................................... 5
Issue Date................................................................ 5
LIBOR Rate................................................................ 5
Life Re Capital Trust..................................................... 5
Master Unit Agreement..................................................... 5
Maturity Date............................................................. 5
Mortgage.................................................................. 5
Non-Book-Entry QUIPS...................................................... 5
Officers.................................................................. 5
Officers' Certificate..................................................... 5
Opinion of Counsel........................................................ 5
Other Debentures.......................................................... 5
Other Guarantees.......................................................... 5
outstanding............................................................... 6
Person.................................................................... 6
Predecessor Security...................................................... 6
Principal Office of the Trustee........................................... 6
Property Trustee.......................................................... 6
Put Date.................................................................. 6
Put Option................................................................ 6
Quarterly Payment Dates................................................... 6
QUIPS..................................................................... 6
QUIPS Guarantee........................................................... 7
Quotation Agent........................................................... 7
Reference Treasury Dealer................................................. 7
Reference Treasury Dealer Quotations...................................... 7
Responsible Officer....................................................... 7
Securities................................................................ 7
Securities Act............................................................ 7
Securityholder............................................................ 7
holder of Securities...................................................... 7
Security Register......................................................... 7
Security Registrar........................................................ 8
Senior Indebtedness....................................................... 8
Subsidiary................................................................ 8
Tax Event................................................................. 9
Three-Month Treasury Rate................................................. 9
Trustee................................................................... 9
Trust Indenture Act of 1939............................................... 9
Trust Securities.......................................................... 9
Underwriting Agreement.................................................... 9
Units..................................................................... 9
U.S. Government Obligations............................................... 10
ii
5
Page
ARTICLE II
SECURITIES............................. 10
SECTION 2.01. Forms Generally............................................ 10
SECTION 2.02. Execution and Authentication............................... 10
SECTION 2.03. Form and Payment........................................... 11
SECTION 2.04. Legends.................................................... 11
SECTION 2.05. Global Security............................................ 11
SECTION 2.06 Interest................................................... 13
SECTION 2.07. Transfer and Exchange...................................... 14
SECTION 2.08. Replacement Securities..................................... 15
SECTION 2.09. [Intentionally Omitted..................................... 15
SECTION 2.10. Temporary Securities....................................... 15
SECTION 2.11. Cancellation............................................... 16
SECTION 2.12. Defaulted Interest......................................... 16
SECTION 2.13. CUSIP Numbers.............................................. 17
SECTION 2.14. Intent of Parties.......................................... 17
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY...................... 17
SECTION 3.01. Payment of Principal, Premium, Interest and Applicable
Put Price.................................................. 17
SECTION 3.02. Offices for Notices and Payments, etc...................... 18
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office......... 18
SECTION 3.04. Provision as to Paying Agent............................... 18
SECTION 3.05. Certificate to Trustee..................................... 19
SECTION 3.06. Compliance with Consolidation Provisions................... 20
SECTION 3.07. Limitation on Dividends.................................... 20
SECTION 3.08. Covenants as to Life Re Capital Trust...................... 21
SECTION 3.09. Payment of Expenses........................................ 21
SECTION 3.10. Payment Upon Resignation or Removal........................ 22
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE........................ 22
SECTION 4.01. Securityholders' Lists..................................... 22
SECTION 4.02. Preservation and Disclosure of Lists....................... 23
SECTION 4.03. Reports by the Company..................................... 24
SECTION 4.04. Reports by the Trustee..................................... 25
iii
6
Page
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT........................ 26
SECTION 5.01. Events of Default.......................................... 26
SECTION 5.02. Payment of Securities on Default; Suit Therefor............ 28
SECTION 5.03. Application of Moneys Collected by Trustee................. 30
SECTION 5.04. Proceedings by Securityholders............................. 30
SECTION 5.05. Proceedings by Trustee..................................... 31
SECTION 5.06. Remedies Cumulative and Continuing......................... 31
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders................................ 32
SECTION 5.08. Notice of Defaults......................................... 33
SECTION 5.09. Undertaking to Pay Costs................................... 33
ARTICLE VI
CONCERNING THE TRUSTEE........................ 33
SECTION 6.01. Duties and Responsibilities of Trustee..................... 33
SECTION 6.02. Reliance on Documents, Opinions, etc....................... 35
SECTION 6.03. No Responsibility for Recitals, etc........................ 36
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities..................... 36
SECTION 6.05. Moneys to Be Held in Trust................................. 36
SECTION 6.06. Compensation and Expenses of Trustee....................... 37
SECTION 6.07. Officers' Certificate as Evidence.......................... 37
SECTION 6.08. Conflicting Interest of Trustee............................ 38
SECTION 6.09. Eligibility of Trustee..................................... 38
SECTION 6.10. Resignation or Removal of Trustee.......................... 38
SECTION 6.11. Acceptance by Successor Trustee............................ 40
SECTION 6.12. Succession by Merger, etc.................................. 40
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.............. 41
SECTION 6.14. Authenticating Agents...................................... 41
ARTICLE VII
CONCERNING THE SECURITYHOLDERS..................... 42
SECTION 7.01. Action by Securityholders.................................. 42
SECTION 7.02. Proof of Execution by Securityholders...................... 43
SECTION 7.03. Who Are Deemed Absolute Owners............................. 43
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding......... 44
SECTION 7.05. Revocation of Consents; Future Holders Bound............... 44
iv
7
Page
ARTICLE VIII
SECURITYHOLDERS' MEETINGS......................... 44
SECTION 8.01. Purposes of Meetings....................................... 44
SECTION 8.02. Call of Meetings by Trustee................................ 45
SECTION 8.03. Call of Meetings by Company or Securityholders............. 45
SECTION 8.04. Qualifications for Voting.................................. 45
SECTION 8.05. Regulations................................................ 46
SECTION 8.06. Voting..................................................... 47
ARTICLE IX
AMENDMENTS AND SUPPLEMENTS........................... 48
SECTION 9.01. Without Consent of Securityholders......................... 48
SECTION 9.02. With Consent of Securityholders............................ 49
SECTION 9.03. Compliance with Trust Indenture Act of 1939; Effect of
Supplemental Indentures.............................. 50
SECTION 9.04. Notation on Securities..................................... 51
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee................................. 51
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.......... 51
SECTION 10.01. Company May Consolidate, etc., on Certain Terms............ 51
SECTION 10.02. Successor Corporation to Be Substituted for Company........ 52
SECTION 10.03. Opinion of Counsel to Be Given Trustee..................... 52
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE................. 53
SECTION 11.01. Discharge of Indenture..................................... 53
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to
Be Held in Trust by Trustee.......................... 53
SECTION 11.03. Paying Agent to Repay Moneys Held.......................... 54
SECTION 11.04. Return of Unclaimed Moneys................................. 54
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.......................................... 54
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS....................... 56
SECTION 12.01. Indenture and Securities Solely Corporate Obligations...... 56
v
8
Page
ARTICLE XIII
MISCELLANEOUS PROVISIONS...................... 56
SECTION 13.01. Successors................................................ 56
SECTION 13.02. Official Acts by Successor Corporation.................... 56
SECTION 13.03. Surrender of Company Powers............................... 56
SECTION 13.04. Addresses for Notices, etc................................ 57
SECTION 13.05. Governing Law............................................. 57
SECTION 13.06. Evidence of Compliance with Conditions Precedent.......... 57
SECTION 13.07. Business Days............................................. 58
SECTION 13.08. Trust Indenture Act of 1939 to Control.................... 58
SECTION 13.09. Table of Contents, Headings, etc.......................... 58
SECTION 13.10. Execution in Counterparts................................. 58
SECTION 13.11. Separability.............................................. 58
SECTION 13.12. Assignment................................................ 58
SECTION 13.13. Acknowledgement of Rights................................. 59
ARTICLE XIV
PUT OPTION; NO EARLY REDEMPTION OF SECURITIES............. 59
SECTION 14.01. Put Option................................................ 59
SECTION 14.02. No Early Redemption by Company............................ 60
ARTICLE XV
SUBORDINATION OF SECURITIES.................... 60
SECTION 15.01. Agreement to Subordinate.................................. 60
SECTION 15.02. Default on Senior Indebtedness............................ 60
SECTION 15.03. Liquidation; Dissolution; Bankruptcy...................... 61
SECTION 15.04. Subrogation............................................... 62
SECTION 15.05. Trustee to Effectuate Subordination....................... 63
SECTION 15.06. Notice by the Company..................................... 63
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness..... 64
SECTION 15.08. Subordination May Not Be Impaired......................... 65
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD................... 65
SECTION 16.01. Extension of Interest Payment Period...................... 65
SECTION 16.02. Notice of Extension....................................... 66
EXHIBIT A................................................................ A-1
Testimonium
Signatures
Acknowledgements
vi
9
THIS INDENTURE, dated as of March __, 1998, between Life Re
Corporation, a Delaware corporation (hereinafter sometimes called the
"Company"), and The Bank of New York, a New York banking corporation, as trustee
(hereinafter sometimes called the "Trustee"),
WITNESSETH:
In consideration of the premises, and the purchase of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, or which are by reference therein defined in the
Securities Act, shall (except as herein otherwise expressly provided or unless
the context otherwise requires) have the meanings assigned to such terms in said
Trust Indenture Act of 1939 and in said Securities Act as in force at the date
of this Indenture as originally executed. The following terms have the meanings
given to them in the Declaration: (i) Clearing Agency; (ii) Delaware Trustee;
(iii) Property Trustee; (iv) Administrators; (v) Direct Action; (vi) Put Agent;
(vii) Distributions; and (viii) QUIPS; and the following terms have the meanings
given to them in the Master Unit Agreement: (i) Pledged Securities; (ii) Stock
Purchase Date; (iii) Call Option Expiration Date; and (iv) Purchase Contracts.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. Headings are used for convenience of reference only and do
not affect interpretation. The singular includes the plural and vice versa.
"Additional Sums" shall have the meaning set forth in Section
2.06(c).
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding the power to vote
10% or more of the outstanding voting securities or other ownership interests of
the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or
10
indirectly owned, controlled or held with power to vote by the specified Person,
(c) any Person directly or indirectly controlling, controlled by, or under
common control with the specified Person, (d) a partnership in which the
specified Person is a general partner, (e) any executive officer or director of
the specified Person, and (f) if the specified Person is an individual, any
entity of which the specified Person is an executive officer, director or
general partner.
"Applicable Put Price" shall have the meaning set forth in Section
14.01.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of
the Company or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, any day other than a Saturday or a
Sunday or a day on which banking institutions in The City of New York or
Wilmington, Delaware, are authorized or required by law or executive order to
close.
"Commission" shall mean 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 of 1939,
then the body performing such duties at such time.
"Common Trust Securities" shall mean undivided beneficial
interests in the assets of Life Re Capital Trust which rank pari passu with
QUIPS issued by Life Re Capital Trust; provided, however, that if an Event of
Default (solely as the result of an event described in clauses (a), (b) or (c)
thereto) has occurred and is continuing, no payments in respect of Distributions
on, or payments upon liquidation, redemption or otherwise with respect to, the
Common Trust Securities shall be made until the holders of the QUIPS shall be
paid in full the Distributions and the liquidation, redemption and other
payments to which they are entitled.
"Common Trust Securities Guarantee" shall mean any guarantee that
the Company may enter into with any Person or Persons that operates directly or
indirectly for the benefit of holders of Common Trust Securities of Life Re
Capital Trust.
2
11
"Common Stock" shall mean (i) the Common Stock, par value $.001
per share, of the Company or (ii) any other class of stock resulting from
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value.
"Company" shall mean Life Re Corporation, a Delaware corporation,
and, subject to the provisions of Article X, shall include its successors and
assigns.
"Company Request" or "Company Order" shall mean a written request
or order signed in the name of the Company by an Officer of the Company, and
delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a three-month maturity that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities with a
three-month maturity.
"Comparable Treasury Price" shall mean, with respect to any date
of determination, (i) the average of five Reference Treasury Dealer Quotations
for such date of determination, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Compounded Interest" shall have the meaning set forth in Section
16.01.
"Coupon Rate" shall have the meaning set forth in Section 2.06.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
"Declaration" shall mean the Amended and Restated Declaration of
Trust of Life Re Capital Trust, dated as of the Issue Date.
"Default" shall mean any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
"Defeasance Agent" shall have the meaning set forth in Section
11.05.
"Deferred Interest" shall have the meaning set forth in Section
16.01.
"Definitive Securities" shall mean those securities issued in
fully registered certificated form not otherwise in global form.
3
12
"Depositary" shall mean, for which the Company shall determine
that such Securities will be issued as a Global Security, The Depository Trust
Company, New York, New York, another clearing agency, or any successor
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to Section 2.05(d).
"Discharged" shall have the meaning set forth in Section 11.05.
"Dissolution Event" shall mean the liquidation of the Trust
pursuant to the Declaration, and the distribution of the Securities held by the
Property Trustee to the holders of the Trust Securities issued by Life Re
Capital Trust pro rata in accordance with the Declaration.
"Effective Call Option Price" for any Securities means (a) the
aggregate principal amount of such Securities plus 90 days of simple interest
thereon at the Coupon Rate, all discounted to present value at the Call Option
Expiration Date at a discount rate equal to the Three-Month Treasury Rate
prevailing on the Call Option Expiration Date (i.e., divided by one plus such
Three-Month Treasury Rate (expressed as a decimal between 0 and 1)) plus (b) the
aggregate amount of deferred interest payments on such Securities accrued to but
not including the Call Option Expiration Date.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Extended Interest Payment Period" shall have the meaning set
forth in Section 16.01.
"Final Put Date" shall mean the date which is three months after
the Stock Purchase Date.
"Global Security" shall mean, with respect to the Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date" shall have the meaning set forth in
Section 2.06.
"Issue Date" means March __ 1998.
4
13
"LIBOR Rate" means, with respect to the period from and including
the Call Option Expiration Date to but excluding the Final Put Date, the London
interbank offered rate for deposits in U.S. dollars having a maturity of one
month commencing on the Call Option Expiration Date which appears on Telerate
Page 3750 (or any successor thereto) as of 11:00 a.m., London time, on the Call
Option Expiration Date.
"Life Re Capital Trust" shall mean Life Re Capital Trust II, a
Delaware business trust created for the purpose of issuing undivided beneficial
interests in its assets in connection with the issuance of Securities under this
Indenture.
"Master Unit Agreement" shall mean the Master Unit Agreement
between the Company and The Bank of New York, as Unit Agent, dated as of the
Issue Date.
"Maturity Date" shall mean March __, 2003.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Non-Book-Entry QUIPS" shall have the meaning set forth in Section
2.05.
"Officers" shall mean any of the Chairman, a Vice Chairman, the
Chief Executive Officer, the President, the Chief Financial Officer, a Vice
President (whether or not designated by a number or words added before or after
such title), the Comptroller, the Secretary or an Assistant Secretary of the
Company.
"Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may be an employee of the Company, and who shall be acceptable to the Trustee.
"Other Debentures" shall mean all junior subordinated debentures
issued by the Company from time to time and sold to trusts established or to be
established by the Company, in each case similar to Life Re Capital Trust.
"Other Guarantees" shall mean all guarantees issued by the Company
with respect to securities and issued to other trusts established or to be
established by the Company, in each case similar to Life Re Capital Trust.
The term "outstanding" when used with reference to Securities,
shall, subject to the provisions of Section 7.04, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee or the
Authenticating Agent under this Indenture, except
5
14
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment of which
moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own
paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.08 unless proof
satisfactory to the Company and the Trustee is presented
that any such Securities are held by bona fide holders in
due course.
"Person" shall mean any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt and as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.08 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Office of the Trustee", or other similar term, shall
mean the principal office of the Trustee, at which at any particular time its
corporate trust business shall be administered.
"Property Trustee" shall have the same meaning as set forth in the
Declaration.
"Put Date" shall mean each of the Stock Purchase Date and the
Final Put Date.
"Put Option" shall have the meaning set forth in Section 14.01
"Quarterly Payment Dates" means ___________, ___________,
__________ and __________ of each year, subject to the deferral provisions
described herein.
"QUIPS" shall mean undivided beneficial interests in the assets of
Life Re Capital Trust which rank pari passu with the Common Trust Securities
issued by Life Re Capital Trust; provided, however, that if an Event of Default
(solely as the result of an event described in clauses (a), (b) or (c) thereto)
has occurred and is continuing, no payments in respect of Distributions (as
defined in the Declaration) on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Trust Securities shall be made until the -
6
15
holders of the QUIPS shall be paid in full the Distributions and the
liquidation, redemption and other payments to which they are entitled.
"QUIPS Guarantee" shall mean any guarantee that the Company may
enter into with The Bank of New York or other Persons that operates directly or
indirectly for the benefit of holders of QUIPS of Life Re Capital Trust.
"Quotation Agent" shall mean the Reference Treasury Dealer
appointed by the Company or, if the Company fails to do so, by an Administrator.
"Reference Treasury Dealer" shall mean a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer") selected by the
Company.
"Reference Treasury Dealer Quotations" shall mean, with respect to
each Reference Treasury Dealer and any date pursuant to Section 14.01, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
such date.
"Responsible Officer", when used with respect to the Trustee,
shall mean any vice president, any assistant vice president, any assistant
secretary, any assistant treasurer, any trust officer or assistant trust
officer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" shall mean the Company's ____% Junior Subordinated
Deferrable Interest Debentures due March __, 2003, as authenticated and issued
under this Indenture.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securityholder", "holder of Securities", or other similar terms,
shall mean any person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Security Register" shall mean (i) prior to a Dissolution Event,
the list of holders provided to the Trustee pursuant to Section 4.01, and (ii)
following a Dissolution Event, any security register maintained by a Security
Registrar for the Securities appointed by the Company following the execution of
a supplemental indenture providing for transfer procedures as provided for in
Section 2.07(a).
7
16
"Security Registrar" shall mean the Person who is appointed by the
Company to maintain the Security Register.
"Senior Indebtedness" shall mean, with respect to the Company, (i)
the principal, premium, if any, and interest in respect of (A) indebtedness of
the Company for money borrowed, and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company,
including, without limitation, any current or future indebtedness under any
indenture (other than the Indenture) to which the Company is party; (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of the Company for the
reimbursement on any letter of credit, any banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction, (v) all obligations of the type referred to
in clauses (i) through (iv) above of other persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
persons secured by any lien on any property or asset of the Company (whether or
not such obligation is assumed by the Company), except for (1) any indebtedness
between or among the Company or any Affiliate of the Company, (2) any other debt
securities issued pursuant to the Indenture and guarantees in respect of those
debt securities and (3) any indebtedness that is by its terms subordinated to or
pari passu with the Securities, including any junior subordinated debentures
issued in the future with subordination terms substantially similar to the
Securities. Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions irrespective or any
amendment, modification or waiver of any term of such Senior Indebtedness.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries, or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
8
17
"Tax Event" shall mean the receipt by Life Re Capital Trust and
the Company of an opinion of a nationally recognized tax counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
(a) amendment or change is effective or (b) pronouncement or decision is
announced, on or after the Issue Date, there is more than an insubstantial risk
that (i) Life Re Capital Trust is, or will be within 90 days of the date of such
opinion, subject to United States Federal income tax with respect to income
received or accrued on the Securities, or (ii) Life Re Capital Trust is, or will
be within 90 days of the date of such opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Three-Month Treasury Rate" means, with respect to any date of
determination, the rate per annum equal to (i) the yield, under the heading
which represents the average for the immediately prior week, appearing in the
most recently published statistical release designated "H.15 (519)" or any
successor publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for
United States Treasury Securities having a three-month maturity or (ii) if such
release (or any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate per annum equal
to the quarterly equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such date plus
0.50%.
"Trustee" shall mean the Person identified as "Trustee" in the
first paragraph hereof, and, subject to the provisions of Article VI hereof,
shall also include its successors and assigns as Trustee hereunder.
"Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939 as in force at the date of execution of this Indenture, except as
provided in Section 9.03.
"Trust Securities" shall mean the QUIPS and the Common Trust
Securities, collectively.
"Underwriting Agreement" shall mean the Underwriting Agreement
dated March __, 1998, among the Company, Life Re Capital Trust and the
underwriters named therein.
"Units" means ____% Adjustable Conversion-rate Equity Security
Units initially consisting of (i) a purchase contract under which the holder
will purchase from the Company a number of shares of Common Stock equal to the
Settlement Rate (as defined in the Master Unit Agreement) and (ii) QUIPS.
9
18
"U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, the terms of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be issued in minimum
denominations of $100,000 and integral multiples of $1,000 above $100,000.
SECTION 2.02. Execution and Authentication.
The Securities shall be signed on behalf of the Company by the
Chairman, a Vice Chairman, the Chief Executive Officer, the President, the Chief
Financial Officer, a Vice President or the Controller and attested by its
Secretary or an Assistant Secretary. Any signature may be in the form of a
manual or facsimile signature in the manner set forth in Exhibit A. If an
Officer whose signature is on a Security no longer holds that office at the time
the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee. The signature of the
Trustee shall be conclusive evidence that the Security has been authenticated
under this Indenture. The form of Trustee's certificate of authentication to be
borne by the Securities shall be substantially as set forth in Exhibit A hereto.
10
19
The Trustee shall, upon a Company Order, authenticate for original
issue up to, and the aggregate principal amount of Securities outstanding at any
time may not exceed the sum of $___________ aggregate principal amount of the
Securities, except as provided in Sections 2.07, 2.08, 2.10 and 14.05.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities shall be issued
in fully registered certificated form without interest coupons. Principal of,
premium, if any, and interest on and the Applicable Put Price with respect to
the Securities issued in certificated form will be payable, the transfer of such
Securities will be registrable and such Securities will be exchangeable for
Securities bearing identical terms and provisions at the office or agency of the
Company maintained for such purpose under Section 3.02; provided, however, that
payment of interest with respect to the Securities (other than Securities issued
in global form, the payment of interest on which shall be made in immediately
available funds) may be made at the option of the Company (i) by check mailed to
the holder at such address as shall appear in the Security Register or (ii) by
wire transfer to an account maintained by the Person entitled thereto, provided
that proper wire transfer instructions have been received in writing by the
relevant record date. Notwithstanding the foregoing, so long as the holder of
any Securities is the Property Trustee, the payment of the principal of,
premium, if any, and interest (including Compounded Interest and Additional
Sums, if any) on and the Applicable Put Price with respect to such Securities
held by the Property Trustee will be made in immediately available funds at such
place and to such account as may be designated by the Property Trustee.
SECTION 2.04. Legends.
Each Security represented by a Global Security pursuant to Section
2.06 shall bear the applicable legend in substantially the form set forth on
Exhibit A hereto.
SECTION 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any QUIPS are held in book-entry form, the related
Definitive Securities shall be presented to the Trustee (if an
arrangement with the Depositary has been maintained) by the Property
Trustee in exchange for one or more Global Securities (as may be
required pursuant to Section 2.07) in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Securities,
to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the
Administrators; the Company upon any such presentation shall execute
one or more Global Securities in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in
accordance with this Indenture; and payments on the Securities issued
as a Global Security will be made to the Depositary; and
11
20
(ii) if any QUIPS are held in certificated form, the related
Definitive Securities may be presented to the Trustee by the Property
Trustee and any certificate which represents QUIPS other than QUIPS in
book-entry form ("Non Book-Entry QUIPS") will be deemed to represent
beneficial interests in Securities presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry QUIPS until such
certificates are presented to the Security Registrar for transfer or
reissuance, at which time such certificates will be cancelled and a
Security, registered in the name of the holder of the certificate or
the transferee of the holder of such Capital Security certificate, as
the case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the certificate cancelled, will be
executed by the Company and delivered to the Trustee for authentication
and delivery in accordance with this Indenture. Upon the issuance of
such Securities, Securities with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee will
be deemed to have been cancelled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
repurchases. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee, in accordance with instructions given by the
Company as required by this Section 2.05.
(c) The Global Securities may be transferred, in whole but not in
part, only to the Depositary, another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon Company Order, will authenticate and make
available for delivery the Definitive Securities, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. If there is an Event of Default,
the Depositary shall have the right to exchange the Global Securities for
Definitive Securities. In addition, the Company may at any time determine that
the Securities shall no longer be represented by a Global Security. In the event
of such an Event of Default or such a determination, the Company shall execute,
and subject to Section 2.07, the Trustee, and in the event of such a
determination, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and make available for delivery
the Definitive Securities, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security in
exchange for such Global Security. Upon the exchange of
12
21
the Global Security for such Definitive Securities, in authorized denominations,
the Global Security shall be cancelled by the Trustee. Such Definitive
Securities issued in exchange for the Global Security shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Definitive Securities to
the Depositary for delivery to the Persons in whose names such Definitive
Securities are so registered.
SECTION 2.06 Interest.
(a) Each Security will bear interest at the rate of ____% per
annum (the "Coupon Rate") from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for,
from the Issue Date, until the principal thereof becomes due and payable, and at
the Coupon Rate on any overdue principal (and premium, if any) and (to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, compounded quarterly, payable (subject to the
provisions of Article XVI) quarterly in arrears on each Quarterly Payment Date
of each year (each, an "Interest Payment Date") commencing on _________ __,
1998, to the Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date for such
interest installment, which shall be one Business Day prior to the relevant
Interest Payment Date, unless the Securities are distributed upon a Dissolution
Event and are issued in certificated form, in which case the regular record date
for such interest installment shall be the first day of the month in which the
relevant Interest Payment Date falls.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months and for any period of less than a full
calendar month, the number of days elapsed in such month. In the event that any
Interest Payment Date falls on a day that is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the date such payment was
originally payable.
(c) During such time as the Property Trustee is the holder of any
Securities, the Company shall pay any additional amounts on the Securities as
may be necessary in order that the amount of Distributions then due and payable
by Life Re Capital Trust on the outstanding Trust Securities shall not be
reduced as a result of any additional taxes, duties and other governmental
charges to which Life Re Capital Trust has become subject as a result of a Tax
Event ("Additional Sums") and the term "interest", as used herein, shall include
any Additional Sums payable on the Securities.
13
22
SECTION 2.07. Transfer and Exchange.
(a) Transfer Restrictions. The Securities may be transferred only
in blocks having an aggregate principal amount of not less than $100,000. Any
such transfer of the Securities in a block having an aggregate principal amount
of less than $100,000 shall be deemed to be void and of no legal effect
whatsoever. Any such transferee shall be deemed not to be holder of such
Securities for any purpose, including but not limited to the receipt of payment
on such Securities, and such transferee shall be deemed to have no interest
whatsoever in such Securities. Upon any distribution of the Securities following
a Dissolution Event, the Company and the Trustee shall enter into a supplemental
indenture pursuant to Section 9.01 to provide for the transfer restrictions and
procedures with respect to the Securities substantially similar to those
contained in the Declaration to the extent applicable in the circumstances
existing at such time.
(b) General Provisions Relating to Transfers and Exchanges. Upon
surrender for registration of transfer of any Security at the office or agency
of the Company maintained for the purpose pursuant to Section 3.02, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making the exchange is
entitled to receive.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
holder thereof or his attorney duly authorized in writing.
All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
No service charge shall be made to a holder for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith.
14
23
Each Securityholder agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Securityholder's Security in violation of any provision of
this Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restriction on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
for replacements of Securities are met. An indemnity bond must be supplied by
the holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee and any authenticating agent from any loss that
any of them may suffer if a Security is replaced. The Company or the Trustee may
charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09. [Intentionally Omitted]
SECTION 2.10. Temporary Securities.
Pending the preparation of Definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
15
24
If temporary Securities are issued, the Company shall cause
Definitive Securities to be prepared without unreasonable delay. The Definitive
Securities shall be printed, lithographed, typewritten or engraved, or provided
by any combination thereof, or in any other manner permitted by the rules and
regulations of any applicable securities exchange, all as determined by the
officers executing such definitive Securities. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at the office
or agency maintained by the Company for such purpose pursuant to Section 3.02
hereof, without charge to the Securityholder, except for any such exchange
involving a registration of transfer pursuant to Section 2.07. Upon surrender
for cancellation of any one or more temporary Securities, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
exchange therefor the same aggregate principal amount of Definitive Securities
of authorized denominations. Until so exchanged, the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
Definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall retain or dispose of cancelled Securities in accordance
with its normal practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to it. The Company
may not issue new Securities to replace Securities that have been repurchased or
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
Any interest on any Security that 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 shall be paid by the Company, at its election, as
provided in clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the
16
25
Trustee shall fix a special record date for the payment of such
Defaulted Interest which shall not be more than 15 nor less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the
Security Register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered
on such special record date and shall be no longer payable pursuant to
the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of exercise of put right as a convenience to Securityholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of exercise of put right and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such put
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.14. Intent of Parties.
The Company agrees, and each holder of a beneficial interest in
any Securities shall by the acquisition of such interest be deemed to have
agreed, that for United States Federal income tax purposes the Securities are
intended to constitute indebtedness.
17
26
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium, Interest and
Applicable Put Price.
The Company covenants and agrees for the benefit of the holders of
the Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on and Applicable Put Price with
respect to the Securities at the place, at the respective times and in the
manner provided herein. Except as provided in Section 2.03, each installment of
interest on the Securities may be paid by mailing checks for such interest
payable to the order of the holder of the Security entitled thereto as they
appear in the Security Register.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Securities may be presented for payment, an office or agency
where the Securities may be presented for registration of transfer and for
exchange as in this Indenture provided and an office or agency where notices and
demands to or upon the Company in respect of the Securities or of this Indenture
may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes shall be the
Principal Office of the Trustee. In case the Company shall fail to maintain any
such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Principal Office of the Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside the Borough of
Manhattan, The City of New York, where the Securities may be presented for
payment, registration of transfer and for exchange in the manner provided in
this Indenture, and the Company may from time to time rescind such designation,
as the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give to
the Trustee prompt written notice of any such designation or rescission thereof.
18
27
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities, it will cause such
paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the
Trustee, subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if
any, or interest on the Securities (or the Applicable
Put Price therefor) (whether such sums have been paid
to it by the Company or by any other obligor on the
Securities of such series) in trust for the benefit of
the holders of the Securities;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the
Securities) to make any payment of the principal of
and premium or interest on the Securities (or the
Applicable Put Price therefor) when the same shall be
due and payable; and
(3) that it will at any time during the continuance of any
such failure, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust
by it as such paying agent.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of and premium,
if any, or interest on the Securities (or the Applicable
Put Price therefor), set aside, segregate and hold in trust
for the benefit of the holders of the Securities a sum
sufficient to pay such principal, premium or interest (or
the Applicable Put Price therefor) so becoming due and will
notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor
under the Securities) to make any payment of the principal
of and premium, if any, or interest on the Securities (or
the Applicable Put Price therefor) when the same shall
become due and payable.
19
28
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for the
purpose of obtaining a satisfaction and discharge with
respect to the Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums
held in trust for any such Securities by the Trustee or any
paying agent hereunder, as required by this Section 3.04,
such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this Section 3.04 is subject to Sections 11.03
and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year in each year, commencing with the first fiscal
year ending after the date hereof, so long as Securities are outstanding
hereunder, an Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting officer of the
Company stating that in the course of the performance by the signers of their
duties as officers of the Company they would normally have knowledge of any
default (without regard to notice requirements or grace periods) by the Company
in the performance of any covenants contained herein, stating whether or not
they have knowledge of any such default and, if so, specifying each such default
of which the signers have knowledge and the nature thereof.
The Company will deliver to the Trustee, as soon as possible and
in any event within five Business Days after the Company becomes aware of the
occurrence of any Event of Default, an Officers' Certificate setting forth the
details of such Event of Default and the action which the Company proposes to
take with respect thereto.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other Person unless the
provisions of Article X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (which includes common and
preferred stock), (ii) make any payment of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Company
(including any Other Debentures) that rank pari passu with or junior in right of
payment to the Securities or (iii) make any guarantee payments with respect to
any
20
29
guarantee by the Company of any securities of any Subsidiary of the Company
(including Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Securities (other than, in the case of clauses (i), (ii)
and (iii), (a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the Company; (b)
any declaration of a dividend in connection with the implementation of a
stockholder's rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto; (c)
payments under the QUIPS Guarantee; (d) as a result of a reclassification of the
Company's capital stock solely into shares of one or more classes or series of
the Company's capital stock or the exchange or the conversion of one class or
series of the Company's capital stock for another class or series of the
Company's capital stock; (e) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged; and (f)
purchases of Common Stock in connection with the satisfaction by the Company of
its obligations (including purchases related to the issuance of Common Stock or
rights) under any of the Company's benefit plans for its and its Subsidiaries'
directors, officers or employees or any of the Company's dividend reinvestment
plans), if at such time (i) an Event of Default shall have occurred and be
continuing, (ii) if the Securities are held by the Property Trustee, the Company
shall be in default with respect to its payment obligations under the QUIPS
Guarantee or (iii) the Company shall have given notice of its election of the
exercise of its right to extend the interest payment period pursuant to Section
16.01 and any such extension shall be continuing.
SECTION 3.08. Covenants as to Life Re Capital Trust.
In the event Securities are issued to Life Re Capital Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
Life Re Capital Trust, for so long as such Trust Securities remain outstanding,
the Company will (i) maintain 100% direct ownership of the Common Trust
Securities of Life Re Capital Trust; provided, however, that any successor of
the Company, permitted pursuant to Article X, may succeed to the Company's
ownership of such Common Trust Securities, (ii) use its reasonable efforts to
cause Life Re Capital Trust (a) to remain a statutory business trust, except in
connection with a distribution of Securities, the redemption of all of the Trust
Securities of Life Re Capital Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of Life Re Capital Trust,
and (b) to otherwise continue to be treated as a grantor trust and not an
association taxable as a corporation or partnership for United States Federal
income tax purposes and (iii) to use its reasonable efforts to cause each holder
of Trust Securities (or, for so long as Trust Securities constitute Pledged
Securities, Units) to be treated as owning an undivided beneficial interest in
the Securities.
21
30
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of the
Securities to Life Re Capital Trust and in connection with the sale of the Trust
Securities by Life Re Capital Trust, the Company, in its capacity as borrower
with respect to the Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Securities, including compensation of the Trustee in accordance
with the provisions of Section 6.06;
(b) pay all costs and expenses of Life Re Capital Trust,
including, but not limited to, costs and expenses relating to the organization
of Life Re Capital Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the initial purchaser in connection
therewith), the fees and expenses of the Property Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of Life Re Capital
Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of assets of Life Re Capital Trust;
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding
taxes attributable to Life Re Capital Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of Life Re Capital Trust; and
(e) pay all other fees, expenses, debts and obligations (other
than payments of principal of, premium, if any, or interest on the Trust
Securities) related to Life Re Capital Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation
of the Trustee, unless otherwise stated, the Company shall pay to the Trustee
all amounts accrued and owing to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee or
the Property Trustee, as the case may be, all amounts accrued and owing to the
date of such termination, removal or resignation.
22
31
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to
be furnished to the Trustee:
(a) on a quarterly basis on each regular record date for the
Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the
Securityholders as of such record date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company, of any
such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished,
except that, no such lists need be furnished so long as the
Trustee is in possession thereof by reason of its acting as
Security Registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and
addresses of the holders of the Securities (1) contained in
the most recent list furnished to it as provided in Section
4.01 or (2) received by it in the capacity of Security
Registrar (if so acting) hereunder. The Trustee may destroy
any list furnished to it as provided in Section 4.01 upon
receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter
referred to as "applicants") apply in writing to the
Trustee and furnish to the Trustee reasonable proof that
each such applicant has owned a Security for a period of at
least six months preceding the date of such application,
and such application states that the applicants desire to
communicate with other holders of Securities or with
holders of all Securities with respect to their rights
under this Indenture 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 5
Business Days after the receipt of such application, at its
election, either:
23
32
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02; or
(2) inform such applicants as to the approximate number of
holders of all Securities, whose names and addresses appear
in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 4.02, and as to the approximate cost of mailing to
such Securityholders 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
Securityholder whose name and address appear in the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 4.02 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 such mailing, unless
within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best
interests of the holders of Securities of such series or
all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material
to all such Securityholders 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) Each and every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any paying
agent shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of
the holders of Securities in accordance with the provisions
of subsection (b) of this Section 4.02, regardless of the
source from which such information was derived, and that
the Trustee shall not be held account-
24
33
able by reason of mailing any material pursuant to a
request made under said subsection (b).
SECTION 4.03. Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the date on which the Company is
required to file the same with the Commission, copies of
the annual reports and of the information, documents and
other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules
and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Company is
not required to file information, documents or reports
pursuant to either of such sections, then to file with the
Trustee 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 regu-
lations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the 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 provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such
holders appear upon the Security Register, within 30 days
after the filing thereof with the Trustee, such
information, documents and reports or summaries of any
information, documents and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this
Section 4.03 as may be required by rules and regulations
prescribed from time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive
notice of any information contained therein or determinable
from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers'
Certificates).
25
34
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of
1939 at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall, within sixty days
after each __________, following the date of this
Indenture, commencing _______________ _, 1999, deliver to
Securityholders a brief report, dated as of such
____________, which complies with the provisions of such
Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee
with each stock exchange, if any, upon which the Securities
are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the
Securities are listed on any stock exchange and any
delisting thereof.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder (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 Security or
any Other Debentures when it becomes due and payable, and
continuance of such default for a period of 30 days;
provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms
hereof or, in the case of any Other Debentures, the
indenture related thereto, shall not constitute a default
in the payment of interest for this purpose; or
(b) default in the payment of all or any part of the principal
of (or premium, if any, on) any Security or any Other
Debentures as and when the same shall become due and
payable either at maturity, upon redemption or repurchase,
by declaration of acceleration of maturity or otherwise; or
26
35
(c) default in the payment of all or any part of the Applicable
Put Price of any Security when due upon exercise of the
related Put Option; or
(d) default in any material respect 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 90 days after there has
been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of
the outstanding Securities 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
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(f) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, shall consent to the entry of an
order for relief in an involuntary case under any such law,
or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or
of any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing, then in every such case the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities
then outstanding may declare the principal amount of all Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the holders of the outstanding Securities), and upon any
such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition
that if, at any time after the principal of the Securities shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a
27
36
sum sufficient to pay (A) all matured installments of interest upon all the
Securities and the principal of and premium, if any, on any and all Securities
(or the Applicable Put Price therefor) which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and
Applicable Put Price and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest specified in the Securities to the date of
such payment or deposit) and (B) such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and (ii) any and all Events of
Default under the Indenture, other than the non-payment of the principal of the
Securities which shall have become due solely by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, in every such case, the holders of a majority in aggregate
principal amount of the Securities then outstanding, by written notice to the
Company and to the Trustee, may rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in
the payment of any installment of interest upon any of the Securities as and
when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of the principal of or premium, if any, on any of the Securities (or the
Applicable Put Price therefor) as and when the same shall have become due and
payable, whether at maturity of the Securities or by declaration or exercise of
the Put Option or otherwise, then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities for
principal and premium, if any, Applicable Put Price or interest, as the case may
be, with interest upon the overdue principal and premium, if any, Applicable Put
Price and (to the extent that payment of such interest is enforceable under
applicable law and, if the Securities are held by Life Re Capital Trust or a
trustee of such trust, without duplication of any other amounts paid by Life Re
Capital Trust or a trustee in respect thereof) upon the overdue installments of
interest at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attor-
28
37
neys and counsel, and any expenses or liabilities incurred by the Trustee
hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor on the
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on the Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Securities
under Xxxxx 00, Xxxxxx Xxxxxx Code, or any other applicable law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal and interest or Applicable Put Price owing and unpaid in
respect of the Securities and, in case of any judicial proceedings, to file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to the Company or
any other obligor on the Securities, or to the creditors or property of the
Company or such other obligor, unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the Securities in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders 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
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
29
38
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof in any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of the
Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities, and it shall not be necessary to make any holders
of the Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Securities in respect of which moneys have
been collected, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection
applicable to the Securities and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Securities for principal of (and premium, if any) and interest on the Securities
(or the Applicable Put Price therefor), in respect of which or for the benefit
of which money has been collected, ratably, without preference of priority of
any kind, according to the amounts due on such Securities for principal (and
premium, if any), the Applicable Put Price and interest, respectively; and
Fourth: To the Company.
30
39
SECTION 5.04. Proceedings by Securityholders.
Except as contemplated by this Section 5.04, no holder of any
Security shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof with respect to the Securities specifying such
Event of Default, as hereinbefore provided, and unless also the holders of not
less than 25% in aggregate principal amount of the Securities then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding, it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of Securities shall have any right in any manner whatsoever by virtue of
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities.
Notwithstanding any other provisions in this Indenture, however,
the right of any holder of any Security to receive payment of the principal of
(premium, if any) and interest on such Security (or the Applicable Put Price
therefor), on or after the same shall have become due and payable, or to
institute suit for the enforcement of any such payment, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker and
holder of every Security with every other such taker and holder and the Trustee,
that no one or more holders of Securities shall have any right in any manner
whatsoever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of the holders of any other Securities,
or to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
The Company and the Trustee acknowledge that pursuant to the
Declaration, the holders of QUIPS (or, for so long as QUIPS underlie Units,
holders of Units) are entitled, in the circumstances and subject to the
limitations set forth therein, to commence a Direct Action with respect to any
Event of Default under this Indenture and the Securities attributable to the
failure of the Company to pay interest or premium, if any, on or principal of
the Securities (or the applicable Put Price therefor) on the due date (after
giving effect to any valid extension of an interest payment period by the
Company). The Company may not amend this Indenture to
31
40
remove the foregoing right without the prior written consent of the holders of
all of the QUIPS (or, for so long as QUIPS underlie Units, the holders of all
the Units). The holders of the QUIPS will not be able to exercise directly any
remedies available to the holders of the Securities other than as provided in
this paragraph.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and
is continuing, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.08, all
powers and remedies given by this Article V to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative and
not exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Securities, and no delay
or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.04, every power and remedy given by this Article V or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
Prior to any declaration accelerating the maturity of the
Securities, the holders of a majority in aggregate principal amount of the
Securities at the time outstanding 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; provided,
however, that (subject to the provisions of Section 6.01) the Trustee shall have
the right to decline to follow any such direction if the Trustee shall determine
that the action so directed would be unjustly prejudicial to the holders not
taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall
32
41
determine that the action or proceedings so directed would involve the Trustee
in personal liability. Prior to any declaration accelerating the maturity of the
Securities, the holders of a majority in aggregate principal amount of the
Securities at the time outstanding may on behalf of the holders of all of the
Securities waive any past default or Event of Default and its consequences
except a default (a) in the payment of principal of or premium, if any, or
interest on or the Applicable Put Price in respect of any of the Securities
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and premium, if any, and principal due otherwise than
by acceleration and the Applicable Put Price with respect to the Securities has
been deposited with the Trustee) or (b) in respect of covenants or provisions
hereof which cannot be modified or amended without the consent of the holder of
each Security affected; provided, however, that if the Securities are held by
the Property Trustee, such waiver or modification to such waiver shall not be
effective until the holders of a majority in aggregate liquidation amount of
Trust Securities shall have consented to such waiver or modification to such
waiver; provided further, that if the consent of the holder of each outstanding
Security is required, such waiver shall not be effective until each holder of
the Trust Securities shall have consented to such waiver. Upon any such waiver,
the default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Securities shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 5.07, said default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed to
have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities, mail to all Securityholders, as the
names and addresses of such holders appear upon the Security Register, notice of
all defaults known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purpose of this
Section 5.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d), (e) and (f) of Section 5.01, not including periods of grace, if
any, provided for therein, and irrespective of the giving of written notice
specified in clause (d) of Section 5.01); and provided that, except in the case
of default in the payment of the principal of or premium, if any, or interest on
or the Applicable Put Price in respect of any of the Securities, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders; and
provided further, that in the case of any default of the character specified in
Section 5.01(d) no such notice to Securityholders shall be given until at least
60 days after the occurrence thereof but shall be given within 90 days after
such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
33
42
All parties to this Indenture agree, and each holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.09 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in aggregate principal
amount of the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on or the Applicable Put Price in respect of any
Security against the Company on or after the same shall have become due and
payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured or
waived), 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
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
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have
occurred
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
34
43
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case
of any such certificates or opinions 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 (but need not confirm or investigate the
accuracy of mathematical calculations or other facts
stated therein);
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) 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 Securityholders pursuant
to Section 5.07, 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture or other paper
or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein may be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and
35
44
any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary
of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders,
pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default (that has not been cured
or waived), to exercise such of the rights and powers vested
in it by this Indenture, and to use the same degree of care
and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own
affairs;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the
holders of a majority in aggregate principal amount of the
outstanding Securities; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents (including any Authenticating Agent) or
attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent or
attorney appointed by it with due care; and
36
45
(h) the Trustee shall not be deemed to have notice of any Default
or Event of 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
the Trustee at the Principal Office of the Trustee, and such
notice references the Securities and this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Trustee and the Authenticating
Agent assume no responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee and the
Authenticating Agent shall not be accountable for the use or application by the
Company of any Securities or the proceeds of any Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security Registrar.
SECTION 6.05. Moneys to Be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, the Chief Executive Officer, the Chief Financial Officer or a
Vice President or the Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of the Securities, covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Company and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the
37
46
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee or any predecessor Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other
than taxes based on the income of the Trustee) incurred without negligence or
bad faith on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim of liability in the premises. The
obligations of the Company under this Section 6.06 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, 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 applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act of 1939, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939, subject to the penultimate paragraph
thereof.
38
47
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized and
doing business under the laws of the United States of America or any state or
territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 6.09 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign by giving written notice of such
resignation to the Company and by mailing notice thereof to
the holders of the Securities at their addresses as they
shall appear on the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a
successor trustee or trustees by written instrument, in
duplicate, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have
accepted appointment within 60 days after the mailing of such
notice of resignation to the Securityholders, the resigning
Trustee may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide holder
of a Security for at least six months may, subject to the
provisions of Section 5.09, on behalf of himself and all
others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and pre-
scribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur --
39
48
(1) the Trustee shall fail to comply with the provisions
of Section 6.08 after written request therefor by the
Company or by any Securityholder who has been a bona
fide holder of a Security or Securities for at least
six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and shall fail to
resign after written request therefor by the Company
or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the
Trustee and appoint a successor trustee by written
instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or,
subject to the provisions of Section 5.09, any
Securityholder who has been a bona fide holder of a
Security for at least six months may, on behalf of
himself and all others similarly situated, petition
any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor
trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Securities at the time outstanding may
at any time remove the Trustee and nominate a
successor trustee, which shall be deemed appointed as
successor trustee unless within 10 days after such
nomination the Company objects thereto or if no
successor trustee shall have been so appointed and
shall have accepted appointment within 30 days after
such removal, in which case the Trustee so removed or
any Securityholder, upon the terms and conditions and
otherwise as in subsection (a) of this Section 6.10
provided, may petition, at the expense of the
Company, any court of competent jurisdiction for an
appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of
the provisions of this Section 6.10 shall become
effective upon acceptance of appointment by the
successor trustee as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
40
49
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they shall
appear on the Security Register. If the Company fails to mail such notice within
10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which the Securities or
41
50
this Indenture elsewhere provides that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act
of 1939, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the Trustee
upon the request of the Company with power to act on its behalf and subject to
its direction in the authentication and delivery of Securities issued upon
exchange or transfer thereof as fully to all intents and purposes as though any
such Authenticating Agent had been expressly authorized to authenticate and
deliver Securities; provided, that the Trustee shall have no liability to the
Company for any acts or omissions of the Authenticating Agent with respect to
the authentication and delivery of Securities. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenti-
42
51
cating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any Authenticating Agent shall
cease to be eligible under this Section 6.14, the Trustee may, and upon the
request of the Company shall, promptly appoint a successor Authenticating Agent
eligible under this Section 6.14, shall give written notice of such appointment
to the Company and shall mail notice of such appointment to all Securityholders
as the names and addresses of such holders appear on the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The Company, as borrower, agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders duly
called and held in accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
action or to revoke any such action, but the Company shall have no obligation to
do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice,
43
52
consent, waiver or other action, and for that purpose the outstanding Securities
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any Security Registrar may deem the Person in whose name such
Security shall be registered upon the Security Register to be, and may treat him
as, the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the principal
of and premium, if any, and the Applicable Put Price with respect to and
(subject to Section 2.06) interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any Authenticating Agent nor any
paying agent nor any transfer agent nor any Security Registrar shall be affected
by any notice to the contrary. All such payments so made to any holder for the
time being or upon his order shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate principal
amount of Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Company or any other obligor
on the Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company,
except for the Securities owned by or on behalf of Life Re Capital Trust, or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent or
44
53
waiver, only Securities which the Trustee actually knows are so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee at its principal office and upon
proof of holding as provided in Section 7.02, revoke such action so far as
concerns such Security (or so far as concerns the principal amount represented
by any exchanged or substituted Security). Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, and of any
Security issued in exchange or substitution therefor, irrespective of whether or
not any notation in regard thereto is made upon such Security or any Security
issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the
waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article
V;
(b) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
45
54
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section
9.02; or
(d) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal
amount of such Securities under any other provision of this
Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 8.01, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to holders of Securities at their
addresses as they shall appear on the Securities Register. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Securities then outstanding, shall have requested the Trustee to call a
meeting of Securityholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place in the Borough of Manhattan, The City of New York for such meeting and may
call such meeting to take any action authorized in Section 8.01, by mailing
notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person shall
be (a) a holder of one or more Securities or (b) a Person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
46
55
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
8.02 or 8.03 may be adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
The Persons entitled to vote a majority in principal amount of the
outstanding Securities shall constitute a quorum for a meeting of holders of
Securities; provided, however, that if any action is to be taken at such meeting
with respect to a consent, waiver, request, demand, notice, authorization,
direction or other action which may be given by the holders of not less than a
specified percentage in principal amount of the outstanding Securities, the
Persons holding or representing such specified percentage in principal amount of
the outstanding Securities will constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of holders of Securities, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 8.02, except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
outstanding Securities which shall constitute a quorum.
Except as limited by the first proviso to the first paragraph of
Section 9.02, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
outstanding Securities; provided, however, that, except as limited by
47
56
the first proviso to the first paragraph of Section 9.02, any resolution with
respect to any consent, waiver, request, demand, notice, authorization,
direction or other action which this Indenture expressly provides may be given
by the holders of not less than a specified percentage in principal amount of
the outstanding Securities may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid only by the
affirmative vote of the holders of not less than such specified percentage in
principal amount of the outstanding Securities.
Any resolution passed or decision taken at any meeting of holders of
Securities duly held in accordance with this Section shall be binding on all the
holders of Securities whether or not present or represented at the meeting.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE IX
AMENDMENTS AND SUPPLEMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and at any time amend
or supplement this Indenture, without the consent of the Securityholders, for
one or more of the following purposes:
48
57
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and
obligations of the Company pursuant to Article X hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the
Securityholders as the Board of Directors and the Trustee
shall consider to be for the protection of the
Securityholders, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional
covenants, restrictions or conditions a Default or an Event of
Default permitting the enforcement of all or any of the
remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional
covenant, restriction or condition such amendment may provide
for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to
the Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities
in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such
Securities with the Securities issued hereunder in fully
registered form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture
which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture,
or to make such other provisions in regard to matters or
questions arising under this Indenture; provided that any such
action shall not materially adversely affect the interests of
the holders of the Securities;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the
Securities;
(f) to make provision for transfer procedures, certification,
book-entry provisions, the form of legends, if any, to be
placed on Securities, minimum denominations and all other
matters required pursuant to Section 2.07 or otherwise
necessary, desirable or appropriate in connection with the
issuance of Securities to holders of QUIPS in the event of a
distribution of Securities by Life Re Capital Trust following
a Dissolution Event;
49
58
(g) to qualify or maintain qualification of this Indenture under
the Trust Indenture Act of 1939; or
(h) to make any change that does not adversely affect the rights
of any Securityholder in any material respect.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to this Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the holders
of in excess of 50% of the aggregate principal amount of the Securities at the
time outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time amend this Indenture 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 the Securities; provided, however, that no such amendment shall
without the consent of the holders of each Security then outstanding and
affected thereby (i) extend the Maturity Date of any Security, or reduce the
rate or extend the time of payment of interest thereon (except as contemplated
by Article XVI), or reduce the principal amount thereof, or reduce any amount
payable on redemption or repurchase thereof, or make the principal thereof or
any interest or premium thereon payable in any coin or currency other than that
provided in the Securities, or impair or affect the right of any Securityholder
to institute suit for payment thereof, (ii) change any of the terms or
conditions of the Put Options or the Applicable Put Price, or (iii) reduce the
aforesaid percentage of Securities the holders of which are required to consent
to any such amendment to this Indenture, provided, however, that if the
Securities are held by Life Re Capital Trust, such amendment shall not be
effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such amendment and further that no such
amendment shall remove the right of a holder of record of QUIPS (or for so long
as QUIPS underlie Units, a holder of record of Units) to institute a Direct
Action with respect to an Event of Default hereunder as provided in the
Declaration without consent of the holders of all of the QUIPS (or, for so long
as QUIPS underlie Units, the holders of all the Units); provided, further, that
if the consent of the holder of each outstanding Security is required, such
amendment shall not be effective until each holder of the Trust Securities shall
have consented to such amendment.
50
59
Upon the request of the Company accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act of 1939; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act of 1939. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such series pursuant to the provisions of this
Article IX may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee or the Authenticating Agent and delivered
in exchange for the Securities then outstanding.
51
60
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX.
The Trustee may receive an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article is authorized
or permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company, or its successor or successors,
as the case may be, shall be a party or parties, or shall prevent any sale,
conveyance, transfer or lease of the property of the Company, or its successor
or successors, as the case may be, as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company, or
its successor or successors, as the case may be) authorized to acquire and
operate the same; provided, that (a) the Company is the surviving Person, or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, conveyance, transfer or lease of property is
made is a Person organized and existing under the laws of the United States or
any State thereof or the District of Columbia, (b) upon any such consolidation,
merger, sale, conveyance, transfer or lease, the due and punctual payment of the
principal of (and premium, if any) and interest on and the Applicable Put Price
with respect to the Securities according to their tenor and the due and punctual
performance and observance of all the obligations, covenants and conditions of
this Indenture to be kept or performed by the Company shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions of the
Trust Indenture Act of 1939, as then in effect) satisfactory in form to the
Trustee executed and delivered to the Trustee by the Person formed by such
consolidation, or into which the Company, shall have been merged, or by the
Person which shall have acquired such property, as the case may be and (c) after
giving effect to such consolidation, merger, sale, conveyance, transfer or
lease, no Default or 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.
52
61
SECTION 10.02. Successor Corporation to Be Substituted for Company.
In case of any such consolidation, merger, conveyance or transfer and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and premium, if any, and
interest on and the Applicable Put Price with respect to all of the Securities
and the due and punctual performance and observance of all of the obligations,
covenants and conditions of this Indenture to be performed or observed by the
Company, such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the Company thereupon shall be relieved of any further liability
or obligation hereunder or upon the Securities. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name of
Life Re Corporation, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which such successor
Person thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
SECTION 10.03. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.08) and not theretofore cancelled, or (b) all the
Securities not theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
53
62
due and payable within one year, and the Company shall deposit with the Trustee,
in trust, funds sufficient to pay on the Maturity Date all of the indebtedness
on the Securities (other than any Securities which shall have been destroyed,
lost or stolen and which shall have been replaced as provided in Section 2.08)
not theretofore cancelled or delivered to the Trustee for cancellation,
including principal and premium, if any, and interest due or to become due to
the Maturity Date, but excluding, however, the amount of any moneys for the
payment of principal of or premium, if any, or interest on the Securities (1)
theretofore repaid to the Company in accordance with the provisions of Section
11.04, or (2) paid to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect except for the provisions of
Sections 2.02, 2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof, which
shall survive until such Securities shall mature and be paid. Thereafter,
Sections 6.06, 6.10 and 11.04 shall survive, and the Trustee, on demand of the
Company accompanied by any Officers' Certificate and an Opinion of Counsel to
the effect that all conditions to the satisfaction and discharge of this
Indenture have been satisfied and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture, the Company, however, hereby agreeing to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee
in connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to Be
Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the payment of which
such moneys or U.S. Government Obligations have been deposited with the Trustee,
of all sums due and to become due thereon for principal, premium, if any, and
interest.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.05 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Trustee) shall, upon
written demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
54
63
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of or premium, if any, or interest on or the
Applicable Put Price with respect to Securities and not applied but remaining
unclaimed by the holders of Securities for two years after the date upon which
the principal of or premium, if any, or interest on or the Applicable Put Price
with respect to such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
Company Request; and the holder of any of the Securities shall thereafter look
only to the Company for any payment which such holder may be entitled to collect
and all liability of the Trustee or such paying agent with respect to such
moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.
The Company shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Securities on the 91st day after the
conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the
Defeasance Agent (as defined below) as trust funds in
trust, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of
the Securities (i) money in an amount, or (ii) U.S.
Government Obligations which through the payment of
interest and principal in respect thereof in
accordance with their terms will provide, not later
than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and
(ii), sufficient, in the opinion (with respect to
(ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee and
the Defeasance Agent, if any, to pay and discharge
each installment of principal of and interest and
premium, if any, on the outstanding Securities on the
dates such installments of principal, interest or
premium are due;
(2) no Default or Event of Default with respect to the
Securities shall have occurred and be continuing on
the date of such deposit;
(3) the Company shall have delivered to the Trustee and
the Defeasance Agent, if any, an Opinion of Counsel
to the effect that holders of the Securities will not
recognize income, gain or loss for United States
Federal income tax purposes as a result of the
exercise of the option under this Section 11.05 and
will be subject to United States Federal income tax
on the same amount and in the same manner and at the
same times as would have been the case if such option
had not been exercised,
55
64
and such opinion shall be based on a statute so
providing or be accompanied by a private letter
ruling to that effect received from the United States
Internal Revenue Service or a revenue ruling
pertaining to a comparable form of transaction to
that effect published by the United States Internal
Revenue Service; and
(4) the Company shall have delivered to the Trustee and
the Defeasance Agent, if any, an Officers'
Certificate and an Opinion of Counsel each stating
that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture have been complied with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest and premium, if any, on the
Securities when such payments are due; (B) the Company's obligations with
respect to the Securities under Sections 2.02, 2.07, 2.08, 3.02, 3.04, 6.10 and
11.04; and (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act under this Article. In the
event such a Defeasance Agent is appointed pursuant to this Section, the
following conditions shall apply:
(1) the Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's rights
and responsibilities;
(2) the Defeasance Agent shall provide verification to
the Trustee acknowledging receipt of sufficient
money and/or U. S. Government Obligations to meet the
applicable conditions set forth in this Section
11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on or the Applicable Put Price with respect to any Security, or for any
claim based thereon or
56
65
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture, or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor Person to the Company,
either directly or through the Company or any successor Person to the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of a
majority of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company, as the case may be, and as
to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee for the purpose)
to the Company, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: W.
Xxxxxx Xxxxxx, Esq. Any notice, direction, request or demand by any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made,
57
66
for all purposes, if given or made in writing at the office of the Trustee, The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Trustee Administration (unless another address is
provided by the Trustee to the Company for the purpose).
Any notice or communication to a holder of Securities shall be mailed
by first class mail to his or her address shown on the register kept by the
Securities Registrar. Failure to mail a notice or communication to a holder or
any defect in it shall not affect its sufficiency with respect to other holders.
SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (except pursuant to Section 3.05) shall include
(1) a statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of or premium, if
any, or interest on or the Applicable Put Price with respect to the Securities
will not be a Business Day, the payment of such principal of or premium, if any,
or interest on the Securities need not be made on such date but may be made on
the next succeeding Business Day, except that if such Business Day is in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
58
67
made on the date of payment and no interest shall accrue for the period from and
after such date.
SECTION 13.08. Trust Indenture Act of 1939 to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such imposed duties shall
control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Securities,
but this Indenture and the Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain primarily liable for all its obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties hereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any Securities held by
Life Re Capital Trust or a trustee of such trust, if the Property Trustee of
such Trust fails to enforce its rights under this Indenture as the holder of the
Securities held as the assets of Life Re Capital Trust, any holder of QUIPS may,
to the fullest extent permitted by applicable law, institute
59
68
legal proceedings directly against the Company to enforce such Property
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Property Trustee or any other Person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
principal of or premium, if any, or interest on or the Applicable Put Price with
respect to the Securities when due, the Company acknowledges that a holder of
QUIPS may directly institute a proceeding for enforcement of payment to such
holder of the principal of or premium, if any, or interest on or the Applicable
Put Price with respect to the Securities having a principal amount equal to the
aggregate liquidation amount of the QUIPS of such holder on or after the
respective due date specified in the Securities.
ARTICLE XIV
PUT OPTION; NO EARLY REDEMPTION OF SECURITIES
SECTION 14.01. Put Option.
Each holder of Securities will have the right (a "Put Option") to
require the Company to repurchase such Securities, in whole or in part, on
either Put Date, for a purchase price equal to the Applicable Put Price for such
Securities.
Each holder of Securities or the Put Agent on behalf of such holder may
exercise the Put Option related to such Securities by presenting and
surrendering the certificate evidencing such Securities, at the Principal Office
of the Trustee, with the form of "Notice of Exercise of Put Right" on the
reverse side of the certificate completed and executed as indicated, by 10:00
a.m., New York City time, on the applicable Put Date.
"Applicable Put Price" for any Securities will be:
(a) if the Put Date is the Stock Purchase Date, the aggregate principal
amount of such Securities plus unpaid interest accrued thereon to but not
including the Put Date; or
(b) if the Put Date is the Final Put Date, (i) the Effective Call
Option Price for such Securities plus simple interest thereon for the
period from and including the Call Option Expiration Date to but
excluding the Put Date at a rate per annum equal to the LIBOR Rate for
such period prevailing on the Call Option Expiration Date plus ____
basis points, minus (ii) the aggregate amount of interest paid on such
Securities after the Call Option Expiration Date and on or before the
Final Put Date plus simple interest on each such interest payment for
the period from and including the date of receipt of such payment to
but excluding the Put Date at a rate per annum equal to the LIBOR Rate
for such period prevailing on such date of receipt.
60
69
SECTION 14.02. No Early Redemption by Company.
The Company shall not have the right to redeem the Securities, in whole
or in part, prior to the Maturity Date.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities issued
hereunder likewise covenants and agrees, that the Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Securities issued hereunder (including payments of the
applicable Put Price) or exercise of any Put Options shall, to the extent and in
the manner hereinafter set forth, be unsecured and subordinated and junior in
right of payment to the prior payment in full of all amounts with respect to
Senior Indebtedness, whether outstanding at the date of this Indenture or
thereafter incurred.
No provision of this Article XV shall (i) prevent the occurrence of any
Default or Event of Default hereunder or (ii) limit the amount of Senior
Indebtedness that may be incurred by the Company.
SECTION 15.02. Default on Senior Indebtedness.
No payment shall be made by the Company with respect to the principal
of or premium, if any, or interest on the Securities (including payments of the
Applicable Put Price on exercise of any Put Options) if there shall have
occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or any judicial
proceeding shall be pending with respect to any such default.
In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Company or retained by Securityholders with
respect to the Securities until the holders of all Senior Indebtedness
outstanding at the time of such acceleration shall receive payment in full of
all amounts due in respect of such Senior Indebtedness (including any amounts
due upon acceleration).
61
70
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraphs of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing, within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, amounts that would be due and payable by
the Company to holders of Securities in the absence of the foregoing
subordination provisions may be applied by such holders or holders of QUIPS (or,
so long as QUIPS underlie the Units, holders of Units) to offset their
obligations to the Company under their respective Purchase Contracts.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or assignment for the benefit of
creditors or marshaling of assets or in bankruptcy, insolvency, debt
restructuring, receivership or other proceedings in connection with any
insolvency or bankruptcy proceeding of the Company, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in full, or payment
thereof provided for in money in accordance with its terms, before any payment
is made by the Company on account of the principal (and premium, if any) or
interest on the Securities (including payments of the Applicable Put Price on
exercise of any Put Options); and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XV, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness held
by such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay such
Senior Indebtedness in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the Securityholders
or to the Trustee.
62
71
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all amounts in respect of such Senior Indebtedness in
full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the holders of such
Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Securities to the payment of Senior Indebtedness that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or substantially
as an entirety, to another Person upon the terms and conditions provided for in
Article X of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger, sale, conveyance,
transfer or lease, comply with the conditions stated in Article X of this
Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all amounts due in respect of Senior
Indebtedness, the rights of the Securityholders shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, as the case may
be, applicable to such Senior Indebtedness until the principal of (and premium,
if any) and interest on and the Applicable Put Price with respect to the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Securityholders or the Trustee would
be entitled except for the provisions of this Article XV, and no payment over
pursuant to the provisions of this Article XV to or for the benefit of the
holders of such Senior Indebtedness by Securityholders or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness of
the Company, and the holders of the Securities, be deemed to be a payment by the
Company to or on account
63
72
of such Senior Indebtedness. It is understood that the provisions of this
Article XV are and are intended solely for the purposes of defining the relative
rights of the holders of the Securities, on the one hand, and the holders of
such Senior Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of the Company, and the
holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of (and
premium, if any) and interest on and the Applicable Put Price with respect to
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
holders of the Securities and creditors of the Company, as the case may be,
other than the holders of Senior Indebtedness of the Company, as the case may
be, nor shall anything herein or therein prevent the Trustee or the holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, as the case may be, received upon the
exercise of any such remedy.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article XV. Notwithstanding the provisions of
this Article XV or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article XV, unless and until a
Responsible Officer of the Trustee assigned to its Principal Office shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI of
this Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days prior to the date
(i) upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on or the Applicable Put Price with respect to any Security),
or (ii) moneys and/or U.S. Government Obligations are deposited in trust
pursuant to Article XI then, anything herein contained to the contrary
notwithstanding, the
64
73
Trustee shall have full power and authority to receive such money and U.S.
Government Obligations and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee or representative on behalf of such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness or a
trustee or representative on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee and the Securityholders shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XV, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
65
74
provisions of Article VI of this Indenture, the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company or any other Person money or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not to extend beyond the Maturity
Date (an "Extended Interest Payment Period"), during which Extended Interest
Payment Period no interest shall be due and payable; provided that no Extended
Interest Payment Period shall end on a date other than an Interest Payment
66
75
Date. To the extent permitted by applicable law, interest, the payment of which
has been deferred because of the extension of the interest payment period
pursuant to this Section 16.01, will bear interest thereon at the Coupon Rate
compounded quarterly for each quarterly period of the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended Interest Payment
Period, the Company shall pay all interest accrued and unpaid on the Securities,
including any Additional Sums and Compounded Interest (together, "Deferred
Interest") that shall be payable to the holders of the Securities in whose names
the Securities are registered in the Security Register on the first record date
preceding the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
defer payments of interest by further extending such period, provided that such
period shall not extend beyond the Maturity Date. Upon the termination of any
Extended Interest Payment Period and the payment of all Deferred Interest then
due, the Company may commence a new Extended Interest Payment Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the Company may
prepay at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Securities at the time the Company elects to begin or extend an Extended
Interest Payment Period, the Company shall give written notice to the
Administrators, the Property Trustee and the Trustee of its election to begin or
extend such Extended Interest Payment Period at least five Business Days before
the earlier of (i) the date on which Distributions on the Trust Securities
issued by Life Re Capital Trust would be payable except for the election to
begin or extend such Extended Interest Payment Period, (ii) the date Life Re
Capital Trust is required to give notice of the record date or the date such
Distributions are payable to any national securities exchange or to holders of
the QUIPS issued by Life Re Capital Trust and (iii) such record date. Upon
receipt of such Notice, the Trustee shall give notice of the Company's election
to begin or extend an Extended Interest Payment Period to the holders of the
QUIPS.
(b) If the Property Trustee is not the only holder of the Securities at
the time the Company elects to begin or extend an Extended Interest Payment
Period, the Company shall give the holders of the Securities and the Trustee
written notice of its election to begin or extend such Extended Interest Payment
Period at least 10 Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to any national
securities exchange.
(c) There is no limitation on the number of times that the Company may
elect to begin or extend an Extended Interest Payment Period.
67
76
THE BANK OF NEW YORK hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
LIFE RE CORPORATION
By _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By _______________________________
Name:
Title:
68
77
EXHIBIT A
(FORM OF FACE OF SECURITY)
IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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 SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
A-1
78
No.____________________ CUSIP No. _________
LIFE RE CORPORATION
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE MARCH __, 2003
Life Re Corporation, a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to The Bank of New York, as Property
Trustee of Life Re Capital Trust II or registered assigns, the principal sum of
$___________ Dollars on March __, 2003 (the "Maturity Date"), unless the Put
Option with respect to this Security was previously exercised, and to pay
interest on the outstanding principal amount hereof from March __, 1998, or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on __________, ___________,
____________ and ___________ of each year, commencing ________ __, 1998 at the
rate of ____% per annum until the principal hereof shall have become due and
payable, and at the same rate per annum on any overdue principal and premium, if
any, and the Applicable Put Price with respect hereto and (without duplication
and to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum
compounded quarterly. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year of twelve 30-day months
and, for any period less than a full calendar month, the number of days elapsed
in such month. In the event that any date on which the principal of (or premium,
if any) or interest on or the Applicable Put Price with respect to this Security
is payable is not a Business Day, then the payment payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date such payment was originally payable.
The interest installment 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 Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be one
Business Day prior to the relevant Interest Payment Date, unless this Security
is distributed upon a Dissolution Event and is issued in certificated form, in
which case the regular record date for such interest installment shall be the
first day of the month in which the relevant Interest Payment Date falls. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record date and may
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days prior
to such special record date, or may be paid at
A-2
79
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
The principal of (and premium, if any) and interest on and the
Applicable Put Price with respect to this Security shall be payable at the
office or agency of the Trustee maintained for that purpose or at the office of
a paying agent or paying agents as the Company may designate from time to time
in any coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts; provided,
however, that, payment of interest may be made at the option of the Company by
(i) check mailed to the holder at such address as shall appear in the Security
Register or (ii) by transfer to an account maintained by the Person entitled
thereto, provided that proper wire transfer instructions have been received by
the relevant record date; provided that if this Security is issued in global
form, payment of the interest hereon shall be made in immediately available
funds. Notwithstanding the foregoing, so long as the holder of this Security is
the Property Trustee, the payment of the principal of (and premium, if any) and
interest on and the Applicable Put Price with respect to this Security will be
made in immediately available funds at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, unsecured and subordinate and junior in right of payment to
the prior payment in full of the Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
The Company agrees, and each holder of a beneficial interest in any
Securities shall by the acquisition of such interest be deemed to have agreed,
that for United States Federal income tax purposes the Securities are intended
to constitute indebtedness.
This Security shall not be entitled to any benefit under the Indenture
or be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
A-3
80
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
LIFE RE CORPORATION
By: ____________________________
Name:
Title
Attest:
By: _______________________
Name:
Title:
A-4
81
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated ______________
THE BANK OF NEW YORK,
as Trustee
By____________________
Authorized Signatory
A-5
82
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein sometimes
referred to as the "Securities"), specified in the Indenture, all issued or to
be issued under and pursuant to an Indenture, dated as of March __, 1998 (the
"Indenture"), duly executed and delivered between the Company and The Bank of
New York, as Trustee (the "Trustee"), to which Indenture reference is hereby
made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the holders of the
Securities.
The holder of Security will have the right to require the Company to
repurchase this Security, in whole or in part, on either Put Date, for a
purchase price equal to the Applicable Put Price for such Security.
The holder of this Security or the Put Agent on behalf of such holder
may exercise the Put Option related to this Security by presenting and
surrendering this Security, at the Principal Office of the Trustee, with the
form of "Notice of Exercise of Put Right" on the reverse side of the certificate
completed and executed as indicated, by 10:00 a.m., New York City time, on the
applicable Put Date.
In the event of the exercise of the Put Option with respect to this
Security in part only, a new Security or Securities for the portion hereof not
repurchased will be issued in the name of the holder hereof upon the
cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of in excess of 50% of the aggregate
principal amount of the Securities at the time outstanding, as defined in the
Indenture, to amend the Indenture for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of modifying in any manner the rights of the holders of the Securities;
provided, however, that no such amendment shall, without the consent of each
holder of Securities then outstanding and affected thereby, (i) extend the
Maturity Date of any Securities, or reduce the principal amount thereof, or
reduce any amount payable on redemption or repurchase thereof, or reduce the
rate or extend the time of payment of interest thereon (subject to Article XVI
of the Indenture), or make the principal of, or interest or premium on, the
Securities payable in any coin or currency other than U.S. dollars, or impair or
affect the right of any holder of Securities to institute suit for the payment
thereof, (ii) change any of the terms or conditions of the Put Options or the
Applicable Put Price, or (iii) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such supplemental indenture.
The Indenture also contains provisions permitting the holders of a majority in
A-6
83
aggregate principal amount of the Securities at the time outstanding, on behalf
of all of the holders of the Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on or the Applicable Put
Price in respect of any of the Securities or a default in respect of any
covenant or provision under which the Indenture cannot be modified or amended
without the consent of each holder of Securities then outstanding. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Security and of any Security issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on and the Applicable Put Price in respect of this Security at the time
and place and at the rate and in the money herein prescribed.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not to extend beyond the Maturity
Date (an "Extended Interest Payment Period"), or ending on a date other than an
Interest Payment Date, at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Securities to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment Period, the Company may further defer payments of interest by
further extending such Extended Interest Payment Period, provided that such
Extended Interest Payment Period, together with all such previous and further
extensions within such Extended Interest Payment Period, (i) shall not end on
any date other than an Interest Payment Date and (ii) shall not extend beyond
the Maturity Date. Upon the termination of any such Extended Interest Payment
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Company has agreed that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Company (including Other Debentures) that rank pari passu with
or junior in right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Company of any securities or any
Subsidiary of the Company (including Other Guarantees) if such guarantee ranks
pari passu or junior in right of payment to the Securities (other than, in the
case of clauses (i), (ii) or (iii), (a) dividends or distribu-
A-7
84
tions in shares of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock of the Company; (b) any declaration of a dividend in
connection with the implementation of a stockholder's rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto; (c) payments under the QUIPS
Guarantee; (d) as a result of a reclassification of the Company's capital stock
solely into shares of one or more classes or series of the Company's capital
stock or the exchange or the conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock; (e)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the exchange or conversion of such capital stock or the security
being exchanged or converted and (f) purchases of Common Stock in connection
with the satisfaction by the Company of its obligations (including purchases
related to the issuance of Common Stock or rights) under any of the Company's
benefit plans for its and its Subsidiaries' directors, officers or employees or
any of the Company's dividend reinvestment plans) if at such time (i) an Event
of Default shall have occurred and be continuing, (ii) if such Securities are
held by the Property Trustee, the Company shall be in default with respect to
its payment obligations under the QUIPS Guarantee or (iii) the Company shall
have given notice of its election of the exercise of its right to extend the
interest payment period and any such extension shall be continuing.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and any integral multiple of $1,000 above
$100,000. As provided in the Indenture and subject to the transfer restrictions
limitations as may be contained herein and therein from time to time, this
Security is transferable by the holder hereof on the Security Register of the
Company, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the City and State of New York accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Security,
the Company, the Trustee, any authenticating agent, any paying agent, any
transfer agent and any Registrar may deem and treat the holder hereof as the
absolute owner hereof (whether or not this Security shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and (subject to the
Indenture) interest due hereon and for all other purposes, and neither the
Company nor the Trustee nor any authenticating agent nor any paying agent nor
any transfer agent nor any registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest on or the Applicable Put Price in respect of this
Security, or for any claim based
A-8
85
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any predecessor or successor
Person, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
A-9
86
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Security on the books of the
---------------------------
Company. The agent may substitute another to act for him or her.
Date:
-----------------------
Signature:
------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee(1):
-----------------------------------------------
----------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A-10
87
NOTICE OF EXERCISE OF PUT RIGHT
The undersigned holder of this Security hereby irrevocably exercises
the option to require the Company to repurchase this Security, or the portion
below designated, for a purchase price equal to the Applicable Put Price for
this Security on the date hereof in accordance with the terms of the Indenture,
dated as of March __, 1998, between the Company and The Bank of New York, as
Trustee. Pursuant to the aforementioned exercise of the option to require the
Company to repurchase this Security, the undersigned hereby directs the Trustee
to take any actions necessary to effect the repurchase of this Security, or the
portion below designated.
Date:
-----------------------------
Principal Amount of this Security to be repurchased ($1000 or integral multiples
thereof):--------------
(Sign exactly as your name appears on the other side of this Security)
Please Print or Type Name and Address,
Including Zip Code, and Social Security
or Other Identifying Number
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Signature Guarantee:*
---------------------------------------------
--------
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A-11
