EXHIBIT 4.1
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INFINITY PROPERTY AND CASUALTY CORPORATION,
as Issuer
and
American Stock Transfer & Trust Company,
as Trustee
5.50% Senior Notes due 2014
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INDENTURE
Dated as of February 17, 2004
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CROSS-REFERENCE TABLE
Certain Sections of this Indenture relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Act Indenture
Section Section
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310(a)(1) 7.9; 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.8; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 10.3
(c) 10.3
313(a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6
(d) 7.6
314(a) 4.4; 4.12; 10.2
(b) N.A.
(c)(1) 10.4
(c)(2) 10.4
(c)(3) N.A.
(d) N.A.
(e) 10.5
(f) 4.4
315(a) 7.1
(b) 7.5
(c) 7.1
(d) 7.1
(e) 6.11
316(a)(last sentence) 10.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) N.A.
(b) 6.7
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.4
318(a) 10.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions and Incorporation by Reference................................................. 1
SECTION 1.1 Definitions.................................................................... 1
SECTION 1.2 Other Definitions.............................................................. 6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.............................. 6
SECTION 1.4 Rules of Construction.......................................................... 7
ARTICLE II The Securities............................................................................. 7
SECTION 2.1 Form and Dating................................................................ 7
SECTION 2.2 Execution and Authentication................................................... 11
SECTION 2.3 Registrar and Paying Agent..................................................... 12
SECTION 2.4 Paying Agent To Hold Money in Trust............................................ 13
SECTION 2.5 Holder Lists................................................................... 13
SECTION 2.6 Transfer and Exchange.......................................................... 13
SECTION 2.7 Form of Certificates to be Delivered in Connection with
Transfers Pursuant to Rule 144A ............................................... 16
SECTION 2.8 Business Days.................................................................. 16
SECTION 2.9 Replacement Securities......................................................... 16
SECTION 2.10 Outstanding Securities......................................................... 16
SECTION 2.11 Temporary Securities........................................................... 16
SECTION 2.12 Cancellation................................................................... 17
SECTION 2.13 Defaulted Interest............................................................. 17
SECTION 2.14 CUSIP Numbers, etc............................................................. 17
SECTION 2.15 Issuance of Additional Securities.............................................. 17
SECTION 2.16 One Class of Securities........................................................ 18
ARTICLE III Redemption................................................................................. 18
SECTION 3.1 Notices to Trustee............................................................. 18
SECTION 3.2 Selection of Securities to be Redeemed......................................... 18
SECTION 3.3 Notice of Redemption........................................................... 19
SECTION 3.4 Effect of Notice of Redemption................................................. 19
SECTION 3.5 Deposit of Redemption Price.................................................... 20
SECTION 3.6 Securities Redeemed in Part.................................................... 20
ARTICLE IV Covenants.................................................................................. 20
SECTION 4.1 Payment of Securities.......................................................... 20
SECTION 4.2 Maintenance of Office or Agency................................................ 21
SECTION 4.3 Money for Security Payments to Be Held in Trust................................ 21
SECTION 4.4 Statements of Officers of Company as to Default; Notice of
Default ....................................................................... 22
SECTION 4.5 Existence...................................................................... 23
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SECTION 4.6 Maintenance of Properties...................................................... 23
SECTION 4.7 Payment of Taxes and Other Claims.............................................. 23
SECTION 4.8 Further Instruments and Acts................................................... 23
SECTION 4.9 Limitation on Liens............................................................ 23
SECTION 4.10 Limitations on Disposition of Stock of Significant Subsidiaries................ 24
SECTION 4.11 Waiver of Certain Covenants.................................................... 24
SECTION 4.12 SEC Reports.................................................................... 24
ARTICLE V Consolidation, Merger and Sale of Assets................................................... 25
SECTION 5.1 Company May Consolidate, Etc., Only on Certain Terms........................... 25
SECTION 5.2 Successor Substituted for Company.............................................. 25
ARTICLE VI Defaults and Remedies...................................................................... 25
SECTION 6.1 Events of Default.............................................................. 25
SECTION 6.2 Acceleration................................................................... 27
SECTION 6.3 Other Remedies................................................................. 27
SECTION 6.4 Waiver of Past Defaults........................................................ 27
SECTION 6.5 Control by Majority............................................................ 27
SECTION 6.6 Limitation on Suits............................................................ 28
SECTION 6.7 Rights of Holders To Receive Payment........................................... 28
SECTION 6.8 Collection Suit by Trustee..................................................... 28
SECTION 6.9 Trustee May File Proofs of Claim............................................... 28
SECTION 6.10 Priorities..................................................................... 29
SECTION 6.11 Undertaking for Costs.......................................................... 29
SECTION 6.12 Waiver of Stay or Extension Laws............................................... 29
ARTICLE VII Trustee.................................................................................... 30
SECTION 7.1 Duties of Trustee.............................................................. 30
SECTION 7.2 Rights of Trustee.............................................................. 31
SECTION 7.3 Individual Rights of Trustee................................................... 32
SECTION 7.4 Trustee's Disclaimer........................................................... 32
SECTION 7.5 Notice of Defaults............................................................. 32
SECTION 7.6 Reports by Trustee to Holders.................................................. 32
SECTION 7.7 Compensation and Indemnity..................................................... 32
SECTION 7.8 Replacement of Trustee......................................................... 33
SECTION 7.9 Successor Trustee by Merger.................................................... 34
SECTION 7.10 Eligibility; Disqualification.................................................. 35
SECTION 7.11 Preferential Collection of Claims Against the Company.......................... 35
ARTICLE VIII Discharge of Indenture; Defeasance......................................................... 35
SECTION 8.1 Discharge of Liability on Securities; Defeasance............................... 35
SECTION 8.2 Conditions to Defeasance....................................................... 36
SECTION 8.3 Application of Trust Money..................................................... 37
SECTION 8.4 Repayment to the Company....................................................... 37
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SECTION 8.5 Indemnity for Government Obligations........................................... 37
SECTION 8.6 Reinstatement.................................................................. 38
ARTICLE IX Amendments................................................................................. 38
SECTION 9.1 Without Consent of Holders..................................................... 38
SECTION 9.2 With Consent of Holders........................................................ 39
SECTION 9.3 Compliance with Trust Indenture Act............................................ 40
SECTION 9.4 Revocation and Effect of Consents and Waivers.................................. 40
SECTION 9.5 Notation on or Exchange of Securities.......................................... 40
SECTION 9.6 Trustee To Sign Amendments..................................................... 41
SECTION 9.7 Payment for Consent............................................................ 41
ARTICLE X Miscellaneous.............................................................................. 41
SECTION 10.1 Trust Indenture Act Controls................................................... 41
SECTION 10.2 Notices........................................................................ 41
SECTION 10.3 Communication by Holders with other Holders.................................... 42
SECTION 10.4 Certificate and Opinion as to Conditions Precedent............................. 42
SECTION 10.5 Statements Required in Certificate or Opinion.................................. 42
SECTION 10.6 When Securities Disregarded.................................................... 43
SECTION 10.7 Rules by Trustee, Paying Agent and Registrar................................... 43
SECTION 10.8 Governing Law.................................................................. 43
SECTION 10.9 No Recourse Against Others..................................................... 43
SECTION 10.10 Successors..................................................................... 43
SECTION 10.11 Multiple Originals............................................................. 43
SECTION 10.12 Variable Provisions............................................................ 43
SECTION 10.13 Qualification of Indenture..................................................... 43
SECTION 10.14 Table of Contents; Headings.................................................... 44
SECTION 10.15 Separability Clause............................................................ 44
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Rule 144A Certificate
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
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INDENTURE, dated as of February 17, 2004, between Infinity
Property and Casualty Corporation, an Ohio corporation (the "Company"), and
American Stock Transfer & Trust Company, a New York banking corporation, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of Holders of the Company's 5.50%
Senior Notes due 2014 (the "Initial Securities") and, if and when issued in
exchange for Initial Securities as provided in the Registration Rights
Agreement, the Company's 5.50% Senior Notes due 2014 (the "Exchange Securities"
and, together with the Initial Securities and any Additional Securities, the
"Securities"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1 Definitions.
"Additional Interest" shall have the meaning assigned to such
term in the Registration Rights Agreement.
"Additional Securities" means 5.50% Senior Notes due 2014
issued from time to time after the Issue Date under the terms of this Indenture
(other than pursuant to Sections 2.6, 2.9, 2.11, 3.6 and 9.5 of this Indenture,
in the case of Securities that are not already Additional Securities, and other
than Exchange Securities issued pursuant to an exchange offer for the other
Securities outstanding under this Indenture).
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
applicable bankruptcy, insolvency, reorganization, rehabilitation or other
similar Federal or state law.
"Board of Directors" or "Board" means, with respect to any
Person, the Board of Directors of such Person or any committee thereof duly
authorized to act on behalf of such Board of Directors.
"Business Day" means a day which is not, in New York City or
any other place of payment, a Saturday, Sunday or other day on which banking
institutions or trust companies are authorized or required by law, resolution or
executive order to close.
"Capital Lease Obligation" means an obligation of the Company
or any Subsidiary to pay rent or other amounts under a lease of (or another
Indebtedness arrangement conveying the right to use) real or personal property
thereof that is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet thereof in accordance with
generally accepted accounting principles. For purposes of this Indenture, the
amount of such obligation shall be the capitalized amount thereof and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease (or such other arrangement) prior to the first date
upon which such lease (or such other arrangement) may be terminated by the
lessee (or obligor) without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, units, participations or other equivalents (however designated) of
corporate stock or other equity of such Person.
"Code" means the U.S. Internal Revenue Code of 1986, as
amended.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Company" shall mean such successor corporation.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered; which office at the date of the execution of this Indenture is
located at 00 Xxxxxx Xxxx, Xxx Xxxx, XX 00000 Attention: Corporate Trust
Department, or at any other time at such other address as the Trustee may
designate from time to time by notice to the Holders.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, every Obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the holder of such Indebtedness of the
payment of such Indebtedness or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (and the
terms "Guaranteed," and "Guarantor" shall have meanings correlative to the
foregoing); provided, however, that the Guaranty by any Person shall not include
endorsements by such Person for collection or deposit, in either case in the
ordinary course of business.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Incur" means create, issue, assume, incur or guarantee.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
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"Indebtedness" of any Person means, without duplication, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every obligation of such Person under conditional
sale or other title retention agreements relating to assets or property
purchased by such Person or issued or assumed as the deferred purchase price of
property, assets or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business that are not overdue by
more than 90 days or are being contested by such Person in good faith); (iv)
every Capital Lease Obligation of such Person; (v) every obligation of such
Person with respect to any Sale and Leaseback Transaction to which such Person
is a party (vi) if such Person is engaged in the insurance business, all Surplus
Debt of such Person; (vii) every obligation of the type referred to in clauses
(i) through (vi) and (viii) of another Person the payment of which such Person
has Guaranteed or is otherwise responsible for or liable for, directly or
indirectly, as obligor, Guarantor or otherwise; and (viii) every amendment,
modification, renewal and extension of an obligation of the type referred to in
clauses (i) through (vii).
"Initial Purchasers" means Xxxxxx Brothers Inc. and UBS
Securities LLC.
"Insurance Regulator" means any Person having (i) authority to
administer or enforce any statute, regulation or other law of the United States,
any State or the District of Columbia or any instrumentality or political
subdivision thereof (or any order or decree of any court thereof) governing the
conduct of an insurance business, and (ii) jurisdiction over the matter in
question.
"Issue Date" means February 17, 2004.
"Lien" means, with respect to any property or assets, any
mortgage, pledge, security interest, lien, conditional sale or other title
retention agreement or other similar encumbrance.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Vice Chairman, any Vice President, the Treasurer,
the Assistant Treasurer, the Chief Financial Officer, the Secretary or the
Assistant Secretary of the Company, as applicable.
"Officers' Certificate" means a certificate signed by any two
Officers of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel to the Company who is reasonably acceptable to the Trustee. The counsel
may be an employee of or counsel to the Company.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of and premium,
if any, or interest on any Securities on behalf of the Company.
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"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Principal" means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time; provided, however, that for purposes of calculating
any such premium, the term "principal" shall not include the premium with
respect to which such calculation is being made.
"Purchase Agreement" means the Purchase Agreement dated
February 11, 2004 between the Company and the Initial Purchasers.
"Registered Exchange Offer" means the offer by the Company,
pursuant to the Registration Rights Agreement, to certain Holders of Initial
Securities, to issue and deliver to such Holders, in exchange for the Initial
Securities, a like aggregate principal amount of Exchange Securities registered
under the Securities Act.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of February 17, 2004, between the
Company and the Initial Purchasers, and with respect to any Additional
Securities, one or more substantially similar registration rights agreements
between the Company and the other parties thereto, as such agreement(s) may be
amended, from time to time.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restrictive Securities Legend" means the Restrictive Legend
set forth in Section 2.1(c).
"Sale and Leaseback Transaction" means any arrangement with
any bank, insurance company or other lender or investor (other than the Company
or a Subsidiary), or to which such lender or investor is a party, providing for
the leasing by the Company or any Subsidiary of any property or asset of the
Company or any Subsidiary that has been or is to be sold or transferred by the
Company or any Subsidiary to such lender or investor or to any Person (other
than the Company or a Subsidiary) to whom funds have been or are to be advanced
by such lender or investor on the security of such property or asset.
"SEC" means the U.S. Securities and Exchange Commission, or
any successor agency.
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by DTC), or any successor person thereto and shall
initially be the Trustee.
"Significant Subsidiary" means a Subsidiary, including its
Subsidiaries, that meets any of the conditions set forth under Rule 405 under
the Securities Act.
"Stated Maturity" means, with respect to any Security, the
date specified in such Security as the fixed date on which the payment of
Principal of such Security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such Security at the option of the Holder thereof upon the
happening of any contingency beyond the control of the Company unless such
contingency has occurred).
"Subsidiary" means a corporation, company (including any
limited liability company), association, partnership, joint venture, trust or
other business entity in which the Company and/or one or more of its other
Subsidiaries owns at least 50% of the Voting Stock.
"Surplus Debt" of any Person engaged in the insurance business
means any liability of such Person to another Person for repayment of a sum of
money to such other Person under a written agreement approved by an Insurance
Regulator providing for such liability to be paid only out of surplus of such
Person in excess of a minimum amount of surplus specified in such agreement.
"Trust Indenture Act" means the U.S. Trust Indenture Act of
1939, as amended (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of
this Indenture; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendments, the U.S. Trust Indenture Act of 1939, as so
amended.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means such successor.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the option of the issuer
thereof.
"Voting Stock" means stock of any class or classes or other
ownership interest having general voting power under ordinary circumstances to
elect a majority of the board of directors, managers, trustees or persons with
similar functions of the entity in question, provided that, for the purposes of
this definition, stock which carries only the right to vote conditionally on the
happening of an event will not be considered Voting Stock whether or not that
event has happened.
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"Wholly Owned Subsidiary" means, at any time, a Subsidiary all
of the outstanding Capital Stock of which (other than directors' qualifying
shares) shall at such time be owned, directly or indirectly, by the Company, one
or more Wholly Owned Subsidiaries or the Company and one or more Wholly Owned
Subsidiaries.
SECTION 1.2 Other Definitions.
Defined in
Term Section
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"Affiliate".......................................................................... 10.6
"Agent Members"...................................................................... 2.1(d)
"Authenticating Agent"............................................................... 2.2
"Company Order"...................................................................... 2.2
"covenant defeasance option"......................................................... 8.1(b)
"Definitive Securities".............................................................. 2.1(e)
"Event of Default"................................................................... 6.1
"Exchange Global Security"........................................................... 2.1(a)
"Exchange Securities"................................................................ Preamble
"Global Securities".................................................................. 2.1(a)
"Initial Securities"................................................................. Preamble
"full defeasance option"............................................................. 8.1(b)
"Paying Agent"....................................................................... 2.3
"QIBs"............................................................................... 2.1(a)
"Registrar".......................................................................... 2.3
"Resale Restriction Termination Date"................................................ 2.6
"Restrictive Legend"................................................................. 2.1(c)
"Rule 144A".......................................................................... 2.1(a)
"Rule 144A Certificate".............................................................. 2.7
"Rule 144A Global Security".......................................................... 2.1(a)
"Rule 144A Security"................................................................. 2.1(a)
"Securities"......................................................................... Preamble
SECTION 1.3 Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following terms in the Trust Indenture Act have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference to another statute or defined by SEC
rule have the meanings assigned to them by such definitions.
SECTION 1.4 Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in
the plural include the singular;
(6) all references to (a) Initial Securities shall refer
also to any Additional Securities issued in the form of Initial
Securities and (b) Exchange Securities shall refer also to any
Additional Securities issued in the form of Exchange Securities, in
each case, pursuant to Section 2.15;
(7) all references to the date the Securities were
originally issued shall refer to the Issue Date or the date any
Additional Securities were originally issued, as the case may be; and
(8) 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.
ARTICLE II
The Securities
SECTION 2.1 Form and Dating. (a) The Initial Securities are
being offered and sold by the Company to the Initial Purchasers pursuant to the
Purchase Agreement. The Initial Securities will be resold initially by the
Initial Purchasers only to qualified institutional buyers (as defined in Rule
144A under the Securities Act ("Rule 144A")) in reliance on Rule 144A ("QIBs").
The Initial Securities may thereafter be transferred only to QIBs for the period
specified herein or in accordance with the procedure described herein.
7
The Initial Securities will be offered and sold to QIBs in
reliance on Rule 144A (each, a "Rule 144A Security" and collectively, the "Rule
144A Securities") in the form of a permanent global Security, without interest
coupons, substantially in the form of Exhibit A, which is incorporated by
reference and made a part of this Indenture, including appropriate legends as
set forth in Section 2.1(c) (the "Rule 144A Global Security"), deposited with
the Trustee, as custodian for DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Rule 144A Global
Security may be represented by more than one certificate, if so required by
DTC's rules regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Rule 144A Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A
Security will be issued in the form of a permanent global Security substantially
in the form of Exhibit B hereto, which is hereby incorporated by reference and
made a part of this Indenture, deposited with the Trustee as hereinafter
provided, including the appropriate legend set forth in Section 2.1(c) (the
"Exchange Global Security"). The Exchange Global Security may be represented by
more than one certificate, if so required by DTC's rules regarding the maximum
principal amount to be represented by a single certificate.
The Rule 144A Global Security and the Exchange Global Security
are sometimes collectively herein referred to as the "Global Securities."
The Principal of and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3; provided, however, that at
the option of the Company, each installment of interest may be paid by (i) check
mailed to addresses of the Persons entitled thereto as such addresses shall
appear on the Note Register or (ii) wire transfer to an account located in the
United States maintained by the payee. Payments in respect of Securities
represented by a Global Security (including Principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by DTC.
(b) Denominations. The Securities shall be issuable only
in fully registered form, without coupons, and only in denominations of $1,000
and any integral multiple thereof.
(c) Legends. (A) Unless and until (i) an Initial Security
is sold under an effective registration statement pursuant to the Registration
Rights Agreement or a similar agreement, (ii) an Initial Security is exchanged
for an Exchange Security in connection with an effective registration statement
pursuant to the Registration Rights Agreement or a similar agreement or (iii)
the Resale Restriction Termination Date (as defined below), the Rule 144A Global
Security shall bear the following legend (the "Restrictive Legend") on the face
thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
8
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A) TO THE COMPANY OR A SUBSIDIARY OF THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE."
(B) The Global Securities, whether or not an Initial
Security, shall bear the following legend on the face thereof:
"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.
9
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER NAME, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall
apply only to Global Securities deposited with the Trustee, as custodian for
DTC.
(ii) Each Global Security initially shall (x) be
registered in the name of DTC for such Global Security or the nominee of DTC,
(y) be delivered to the Trustee as custodian for DTC and (z) bear legends as set
forth in Section 2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC or by the Trustee as the custodian of DTC or under
such Global Security, and DTC may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices of DTC governing the exercise of the rights
of a holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (e) of this
Section 2.1 to beneficial owners who are required to hold Definitive Securities,
the Securities Custodian shall reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to subsection (e) of this Section 2.1,
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount
of Definitive Securities of authorized denominations.
(vi) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
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(e) Definitive Securities. (i) Except as provided below,
owners of beneficial interests in Global Securities will not be entitled to
receive certificated Securities ("Definitive Securities"). If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain
Definitive Securities in exchange for their beneficial interests in a Global
Security upon written request in accordance with DTC's and the Registrar's
procedures. In addition, Definitive Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Security if (a) DTC notifies the Company that it is unwilling or unable to
continue as depositary for such Global Security or DTC ceases to be a clearing
agency registered under applicable law and a successor depositary is not
appointed by the Company within 90 days of such notice, (b) the Company executes
and delivers to the Trustee an Officers' Certificate stating that such Global
Security shall be so exchangeable or (c) an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC.
(ii) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(d)(iv) or (v) shall bear
the legend regarding transfer restrictions applicable to the Definitive Security
set forth in Section 2.1(c).
SECTION 2.2 Execution and Authentication. An Officer of the
Company shall sign the Securities for the Company by manual or facsimile
signature and may be imprinted or otherwise reproduced.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee authenticates the Security by manual or facsimile signature. The
signature of the Trustee on a Security shall be conclusive evidence that such
Security has been duly and validly authenticated and issued under this
Indenture. A Security shall be dated the date of its authentication.
At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery: (1) Initial Securities for original issue on the Issue Date in an
aggregate principal amount of $200.0 million, (the "Original Securities"), (2)
any Additional Securities for original issue from time to time after the Issue
Date as set forth in Section 2.15 and (3) any Exchange Securities for issue only
in exchange for a like principal amount of Initial Securities, in each case upon
a written order of the Company signed by two Officers of the Company (a "Company
Order"). Such Company Order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities,
Additional Securities or Exchange Securities. The aggregate principal amount of
Initial Securities which may be authenticated and delivered under this Indenture
is limited to $200.0 million. Additionally, the Company may from time to time,
without notice to or consent of the Holders, issue such additional principal
amounts of Additional Securities as may be issued and authenticated pursuant to
clause (2) of this paragraph, and Securities authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Securities
of the same class pursuant to Section 2.6, Section 2.9, Section 2.10, Section
3.6 or Section 9.5.
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The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent.
In case the Company, pursuant to Article V, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of all or substantially all its properties to any
Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Company shall have been merged, or the Person
which shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto (if not
otherwise a party to the Indenture) with the Trustee pursuant to Article V, any
of the Securities authenticated or delivered prior to such consolidation,
merger, conveyance, transfer, lease or other disposition may, from time to time,
at the request of the successor Person, be exchanged for other Securities
executed in the name of the successor Person with such changes in phraseology
and form as may be appropriate, but otherwise in substance of like tenor as the
Securities surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the successor Person, shall authenticate and
deliver Securities as specified in such order for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name
of a successor Person (if other than the Company) pursuant to this Section 2.2
in exchange or substitution for or upon registration of transfer of any
Securities, such successor Person (if other than the Company), at the option of
the Holders but without expense to them, shall provide for the exchange of all
Securities at the time outstanding for Securities authenticated and delivered in
such new name.
SECTION 2.3 Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more additional paying agents. The term "Paying Agent"
includes any such additional paying agent.
In the event the Company shall retain any Person not a party
to this Indenture as an agent hereunder, the Company shall enter into an
appropriate agency agreement with such agent, which shall incorporate the terms
of the Trust Indenture Act. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of each such agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.7. The Company shall
be responsible for the fees and compensation of all agents appointed or approved
by it. Either the Company or any of its domestically incorporated wholly owned
Subsidiaries may act as Paying Agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Securities.
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SECTION 2.4 Paying Agent To Hold Money in Trust. By no later
than 11:00 a.m. (New York City time) on the date on which any Principal or
interest (including any Additional Interest) on any Security is due and payable,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
Principal or interest (including any Additional Interest) when due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that such Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by such Paying Agent for the payment of Principal of or
interest (including any Additional Interest) on the Securities and shall notify
the Trustee in writing of any default by the Company in making any such payment.
If either of the Company or any of its Subsidiaries acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.
SECTION 2.5 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall cause the Registrar to furnish to the Trustee, in writing at least
five Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Holders.
SECTION 2.6 Transfer and Exchange. With respect to any
proposed registration of transfer of a Global Security prior to the date which
is two years after the later of the date of its original issue and the last date
on which the Company or any Affiliate of the Company was the owner of such
Security (or any predecessor thereto) (the "Resale Restriction Termination
Date"), a registration of transfer shall be made upon the representation of the
transferee in the form as set forth on the reverse of the Security that it is
purchasing for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the transferee has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
(a) Restrictive Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restrictive Legend, the Registrar shall
deliver Securities that do not bear a Restrictive Legend. Upon the transfer,
exchange or replacement of Securities bearing a Restrictive Legend, the
Registrar shall deliver only Securities that bear a Restrictive Legend unless
there is delivered to the Registrar an Opinion of Counsel to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act. The
Registrar shall not register a transfer of any Security that does not comply
with the applicable provisions of this Indenture.
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(b) Copies. The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to Section
2.1 or this Section 2.6. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
(c) Obligations with Respect to Transfers and Exchanges
of Securities.
(i) To permit registrations of transfers and
exchanges, the Company shall, subject to the other terms and conditions
of this Article II, execute and the Trustee shall authenticate
Definitive Securities and Global Securities at the Registrar's request.
(ii) 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,
assessment, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to
Sections 3.6 or 9.5).
(iii) The Registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning (1) 15 days before the mailing of a notice of an offer to
repurchase or redeem Securities and ending at the close of business on
the day of such mailing or (2) 15 days before an interest payment date
and ending on such interest payment date.
(iv) Prior to the due presentation for
registration of transfer of any Security, the Company, the Trustee, the
Paying Agent or the Registrar may deem and treat the person in whose
name a Security is registered as the absolute owner of such Security
for the purpose of receiving payment of Principal of and interest on
such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, the
Paying Agent or the Registrar shall be affected by notice to the
contrary.
(v) Any Definitive Security delivered in
exchange for an interest in a Global Security pursuant to Section
2.1(d) shall bear the legend regarding transfer restrictions applicable
to the Definitive Security set forth in Section 2.1(c).
(vi) All Securities issued upon any transfer or
exchange pursuant to the terms of this Indenture shall be the valid and
legally binding obligation of the Company, shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(vii) All certificates, certifications and
opinions of counsel required to be submitted to the Registrar pursuant
to this Section 2.6 to effect any transfer or exchange may be submitted
by facsimile transmission, with the original to follow by first class
mail or hand delivery.
(d) No Obligation of the Trustee. (i) The Trustee shall
have no responsibility or obligation to any beneficial owner of a Global
Security, a member of, or a participant in, DTC or
14
other Person in respect of any aspect of the records, or for maintaining,
supervising or reviewing any records, relating to beneficial ownership interests
of a Global Security, with respect to the accuracy of the records of DTC or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than DTC) of any notice
(including any notice of redemption) or the payment of any amount or delivery of
any Securities (or other security or property) under or with respect to such
Securities. All notices and communications to be given to the Holders and all
payments to be made to Holders in respect of the Securities shall be given or
made only to or upon the order of the Holders (which shall be DTC or its nominee
in the case of a Global Security). The rights of beneficial owners in any Global
Security shall be exercised only through DTC subject to the applicable rules and
procedures of DTC. The Trustee and the Company may conclusively rely and shall
be fully protected in relying upon information furnished by DTC with respect to
its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions 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 Agent Members 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.
(e) Transfer and Exchange of Global Securities. A Global
Security may not be transferred as a whole except by DTC to a nominee of DTC, by
a nominee of DTC to DTC or to another nominee of DTC, or by the DTC or any such
nominee to a successor depositary or to a nominee of such successor depositary.
(f) Accrual of Interest on the Exchange Security;
Exchange of Exchange Securities.
(i) Interest on any Exchange Security shall
accrue from the dates provided in Exhibit B.
(ii) Subject to Section 2.1(e), upon the
occurrence of the exchange offer in accordance with the Registration
Rights Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2, the Trustee shall
authenticate, one or more Exchange Global Securities in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Initial Securities or Additional Securities tendered
for acceptance by Persons that certify in the applicable letters of
transmittal that (x) they are not broker-dealers, (y) they are not
participating in a distribution of the Exchange Securities and (z) they
are not affiliates (as defined in Rule 144 under the Securities Act) of
the Company, and accepted for exchange in the exchange offer.
Concurrently with the issuance of such Securities, the Trustee shall
cause the aggregate principal amount of the applicable Initial
Securities in the form of Global Securities and/or Additional
Securities in the form of Global Securities to be reduced accordingly.
15
SECTION 2.7 Form of Certificates to be Delivered in Connection
with Transfers Pursuant to Rule 144A. Attached hereto as Exhibit C is the
certificate to be delivered in connection with transfers pursuant to Rule 144A
(the "Rule 144A Certificate").
SECTION 2.8 Business Days. If a payment date is on a date that
is not a Business Day, payment shall be made on the next succeeding day that is
a Business Day, and no interest shall accrue on such payment for the intervening
period. If a regular record date is on a day that is not a Business Day, the
record date shall not be affected.
SECTION 2.9 Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security shall provide the
Company and the Trustee with evidence to their satisfaction that the Security
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the requirements of Section
8-405 of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. In addition, such Holder shall furnish
an indemnity or surety bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent and the Registrar
from any loss which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge the Holder for their expenses in replacing a
Security, including reasonable fees and expenses of counsel. Every replacement
Security is an additional obligation of the Company.
SECTION 2.10 Outstanding Securities. Securities outstanding at
any time are all Securities authenticated by the Trustee except for those
canceled, those delivered for cancellation and those described in this Section
2.10 as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.9, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all Principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.11 Temporary Securities. Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, one or more
definitive Securities representing an equal principal amount of Securities.
Until so
16
exchanged, the Holder of temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as a Holder of definitive Securities.
SECTION 2.12 Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee for cancellation any Securities surrendered to them
for registration of transfer or exchange or payment. The Trustee and no one else
shall cancel (subject to the record retention requirements of the Exchange Act)
all Securities surrendered for registration of transfer or exchange, payment or
cancellation and, upon the request of the Company, deliver a certificate of such
cancellation to the Company. The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancellation,
which shall not prohibit the Company from issuing any Additional Securities, or
any Exchange Securities in exchange for Initial Securities. All cancelled
Securities held by the Trustee may be disposed of by the Trustee in accordance
with its then customary practices and procedures, unless the Company directs
otherwise.
SECTION 2.13 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
plus interest on such defaulted interest to the extent lawful at the rate
specified therefor in the Securities in any lawful manner. The Company may pay
the defaulted interest to the Persons who are Holders on a subsequent special
record date. The Company shall fix or cause to be fixed any such special record
date and payment date to the reasonable satisfaction of the Trustee which
specified record date shall not be less than 10 days prior to the payment date
for such defaulted interest and shall promptly mail or cause to be mailed to
each Holder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such defaulted interest as provided in this
Section 2.13.
SECTION 2.14 CUSIP Numbers, etc. The Company in issuing the
Securities may use "CUSIP" or "ISIN" numbers and/or other similar numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" and/or "ISIN"
numbers in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers and/or other
similar numbers.
SECTION 2.15 Issuance of Additional Securities. The Company
shall be entitled to issue, from time to time, Additional Securities under this
Indenture which shall have identical terms as the Initial Securities issued on
the Issue Date or the Exchange Securities exchanged therefor (in each case,
other than with respect to the date of issuance, issue price and amount of
interest payable on the first payment date applicable thereto), as the case may
be. The
17
Initial Securities issued on the Issue Date, any Additional Securities and all
Exchange Securities issued in exchange therefor shall be treated as a single
class for all purposes under this Indenture.
With respect to any Additional Securities, the Company shall
set forth in a resolution of the Board of Directors and an Officers'
Certificate, a copy of each shall be delivered to the Trustee, the following
information:
(i) the aggregate principal amount of such Additional
Securities to be authenticated and delivered pursuant to this Indenture;
(ii) the issue price, the issue date and the "CUSIP" and
"ISIN" number of any such Additional Securities and the amount of interest
payable on the first payment date applicable thereto;
(iii) whether such Additional Securities shall be transfer
restricted securities and issued in the form of Initial Securities as set forth
in Exhibit A to this Indenture or shall be issued in the form of Exchange
Securities as set forth in Exhibit B to this Indenture; and
(iv) if applicable, the Resale Restriction Termination
Date for such Additional Securities.
SECTION 2.16 One Class of Securities. The Initial Securities,
any Additional Securities and the Exchange Securities shall vote and consent
together on all matters as one class; and none of the Initial Securities, any
Additional Securities and the Exchange Securities shall have the right to vote
or consent as a separate class on any matter. The Initial Securities, any
Additional Securities and the Exchange Securities shall together be deemed to be
a single series under this Indenture.
ARTICLE III
Redemption
SECTION 3.1 Notices to Trustee. If the Company elects to
redeem Securities pursuant to Section 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for
in this Section 3.1 at least 60 days (45 days in the case of redemption of all
the Securities) before the redemption date unless the Trustee consents to a
shorter period. Such notice shall be accompanied by an Officers' Certificate
from the Company to the effect that such redemption will comply with the
conditions herein. The record date, if any, relating to such redemption shall be
selected by the Company and set forth in the related notice given to the
Trustee, which record date shall be not less than 15 days prior to the date
selected for redemption by the Company.
SECTION 3.2 Selection of Securities to be Redeemed. If fewer
than all the Securities then outstanding are to be redeemed, the Trustee shall
select the Securities to be redeemed by a method that complies with applicable
legal and securities exchange requirements,
18
if any, and that the Trustee considers, in its discretion, to be fair and
appropriate in accordance with methods generally used at the time of selection
by fiduciaries in similar circumstances. The Trustee shall make the selection
from outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the Principal of Securities that have
denominations larger than $1,000. Securities and portions of them that the
Trustee selects shall be in amounts of $1,000 or a whole multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company of the Securities or portions of Securities to be redeemed.
SECTION 3.3 Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, notice of
redemption shall be mailed by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price (or the method of
calculating such price) and the amount of accrued interest to be paid,
if any;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must
be surrendered to the Paying Agent to collect the redemption price plus
accrued and unpaid interest, if any;
(5) if fewer than all the outstanding Securities
are to be redeemed, the Bond No. (if certificated) and principal
amounts of the particular Securities to be redeemed;
(6) that, unless the Company defaults in making
such redemption payment, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the redemption
date;
(7) the CUSIP number, or any similar number, if
any, printed on the Securities being redeemed; and
(8) that no representation is made as to the
correctness or accuracy of the CUSIP number, or any similar number, if
any, listed in such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section 3.3.
SECTION 3.4 Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.3, Securities called for
redemption shall become due and payable on the redemption date and at the
redemption price as stated in the notice. Upon
19
surrender to the Paying Agent on or after the redemption date, such Securities
shall be paid at the redemption price stated in the notice, plus accrued and
unpaid interest to the redemption date; provided, that the Company shall have
deposited the redemption price with the Paying Agent or the Trustee on or before
11:00 a.m. (New York City time) on the date of redemption; provided further that
if the redemption date is after a regular record date and on or prior to the
interest payment date, the accrued and unpaid interest shall be payable to the
Holder of the redeemed Securities entitled to the redemption price. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.5 Deposit of Redemption Price. By no later than
11:00 a.m. (New York City time) on the date of redemption, the Company shall
deposit with the Paying Agent (or, if the Company or any of its Subsidiaries is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
redemption price of and accrued and unpaid interest on all Securities to be
redeemed on that date other than Securities or portions of Securities called for
redemption which are owned by the Company or a Subsidiary and have been
delivered by the Company or such Subsidiary to the Trustee for cancellation.
Unless the Company defaults in the payment of such redemption
price, interest on the Securities to be redeemed will cease to accrue on and
after the applicable redemption date, whether or not such Securities are
presented for payment.
SECTION 3.6 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder thereof (at the Company's expense) a new
Security, equal in a principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE IV
Covenants
SECTION 4.1 Payment of Securities. The Company covenants and
agrees that it will promptly pay the Principal of and interest (including
Additional Interest) on the Securities and the redemption price as and when due,
on the dates and in the manner provided in the Securities and in this Indenture.
Principal and interest (including Additional Interest) shall be considered paid
on the date due if, on or before 11:00 a.m. (New York City time) on such date,
the Trustee or the Paying Agent (or, if the Company or any of its Subsidiaries
is the Paying Agent, the segregated account or separate trust fund maintained by
the Company or such Subsidiary pursuant to Section 2.4) holds in accordance with
this Indenture money sufficient to pay all Principal and interest (including
Additional Interest) then due. If any Additional Interest is due, the Company
shall deliver an Officers' Certificate to the Trustee setting forth the
Additional Interest per $1,000 aggregate principal amount of Securities.
The Company shall pay interest on overdue Principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided in
Section 2.13.
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Notwithstanding anything to the contrary contained in this
Indenture, the Company or the Paying Agent may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes imposed by the
United States of America or other domestic or foreign taxing authorities from
Principal or interest payments hereunder.
SECTION 4.2 Maintenance of Office or Agency. The Company will
maintain an office or agency in the United States where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. Such
office or agency will initially be the office of the Trustee located at 00
Xxxxxx Xxxx, Xxx Xxxx, XX 00000. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.2, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the United States for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 4.3 Money for Security Payments to Be Held in Trust.
If the Company shall at any time 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 any
of the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the Principal (and premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, on or prior to each due date of the Principal of and premium, if any, or
interest on any Securities, deposit with the Paying Agent or Paying Agents a sum
sufficient to pay the Principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
Principal, premium, if any, or interest, and, unless such Paying Agent is the
Trustee, the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of
the Principal of and premium, if any, or interest on Securities in
trust for the benefit of the Persons entitled
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thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by
the Company (or any other obligor upon the Securities) in the making of
any payment of Principal and premium, if any, or interest; and
(3) at any time during the continuance of any
such default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company in trust for the payment of the Principal of and
premium, if any, or interest on any Security and remaining unclaimed for two
years after such Principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Order, or, if then held by the
Company, shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be disseminated once, in a press release through
Dow Xxxxx & Company, Inc. or Bloomberg Business News (or any successor or
similar organization), notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 4.4 Statements of Officers of Company as to Default;
Notice of Default. (a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof, a
certificate, signed by the principal executive officer, principal financial
officer, or principal accounting officer, stating whether or not to the best
knowledge of the signers thereof the Company is in Default (without regard to
periods of grace or requirements of notice) in the performance and observance of
any of the terms, provisions and conditions hereof, and if the Company shall be
in Default, specifying all such Defaults and the nature and status thereof of
which they may have knowledge.
(a) The Company shall file with the Trustee written
notice of the occurrence of any Default or Event of Default within five Business
Days of its becoming aware of any such Default or Event of Default.
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SECTION 4.5 Existence. Subject to Article VIII, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises
and those of each of its Significant Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise if its
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or the business of any
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 4.6 Maintenance of Properties. The Company will cause
all properties used or useful in the conduct of its business or the business of
any Significant Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the reasonable judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
reasonable judgment of the Company, desirable in the conduct of its business or
the business of any Significant Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 4.7 Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary, and (2) all material lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings and for
which disputed amounts adequate reserves have been made.
SECTION 4.8 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and
perform such further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture.
SECTION 4.9 Limitation on Liens. (a) The Company will not, and
will not permit any Subsidiary to, incur, issue, assume or Guaranty any
Indebtedness if such Indebtedness is secured by Lien on any shares of Voting
Stock of any Significant Subsidiary, whether such Voting Stock is now owned or
shall hereafter be acquired, without providing that the Securities (together
with, if the Company shall so determine, any other Indebtedness or obligations
of the Company or any Subsidiary ranking equally with such Securities and then
existing or thereafter created) shall be secured equally and ratably with such
Indebtedness. For the purposes of the foregoing, pledging, placing a lien on or
creating a security interest in any shares of Voting Stock of a Significant
Subsidiary in order to secure then outstanding Indebtedness of the Company or
any Subsidiary shall be deemed to be the incurrence, issuance, assumption or
Guaranty (as the case may be) of such Indebtedness.
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(b) The foregoing limitation shall not apply to (i) up to
$10 million of Indebtedness not contemplated by clauses (ii) and (iii), (ii)
Indebtedness secured by a Lien on any shares of Voting Stock of any corporation
if such Lien is made or granted prior to or at the time such corporation becomes
a Significant Subsidiary, (iii) Liens securing Indebtedness of a Significant
Subsidiary to the Company or another Significant Subsidiary or (iv) the
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in the foregoing
clauses (ii) and (iii) but only if the principal amount of Indebtedness secured
by the Liens immediately prior to the extension, renewal or replacement is not
increased and the Lien is not extended to other property.
SECTION 4.10 Limitations on Disposition of Stock of
Significant Subsidiaries. The Company will not, and will not permit any
Subsidiary to, sell, transfer or otherwise dispose of any shares of Capital
Stock of any Significant Subsidiary (or of any Subsidiary having direct or
indirect control of any Significant Subsidiary) except for, subject to the
covenant relating to mergers and sales of assets described in Section 5.1, (i) a
sale, transfer or other disposition of any Capital Stock of any Significant
Subsidiary (or of any Subsidiary having direct or indirect control of any
Significant Subsidiary) to a Wholly Owned Subsidiary of the Company or (ii) a
sale, transfer or other disposition for at least fair value (as determined by
the Board of Directors acting in good faith) of any of the Capital Stock of any
Significant Subsidiary (or of any Subsidiary having direct or indirect control
of any Significant Subsidiary) held by the Company and its Subsidiaries, and in
either such case, after giving effect to the use of proceeds therefrom, the
Company and its Subsidiaries, considered as a whole, would continue to be
principally engaged in the business the Company and its Subsidiaries conduct as
of February 11, 2004.
SECTION 4.11 Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or condition set
forth in this Article IV (other than Sections 4.1 through 4.4, inclusive), if
before the time for such compliance the Holders of at least a majority (or such
greater amount as may be specified in any such term, provision or condition) in
Principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 4.12 SEC Reports. The Company will comply with all the
applicable provisions of Section 314(a) of the Trust Indenture Act. Delivery of
such information, documents or reports to the Trustee pursuant to such
provisions is for informational purposes only, and the Trustee's receipt thereof
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on the Officers' Certificate).
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ARTICLE V
Consolidation, Merger and Sale of Assets
SECTION 5.1 Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into another corporation
or sell or lease all or substantially all its assets to another corporation,
unless:
(1) either the Company is the continuing
corporation, or the successor corporation (if other than the Company)
expressly assumes by supplemental indenture the obligations evidenced
by the Securities (in which case, except in the case of such a lease,
the Company will be discharged therefrom; provided that any successor
corporation must be a corporation organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia); and
(2) immediately thereafter, the Company or the
successor corporation (if other than the Company) would not be in
default in the performance of any covenant or condition contained
herein.
SECTION 5.2 Successor Substituted for Company. Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of all or substantially all the
properties and assets of the Company in accordance with Section 5.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE VI
Defaults and Remedies
SECTION 6.1 Events of Default. "Event of Default," wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order or any court or
any order, rule or regulation of any administrative or governmental body):
(1) default by the Company in the payment of any
interest upon any Security when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default by the Company in the payment of the
Principal of or premium, if any, on, or the redemption price on, any
Security when the same becomes due and payable at its Maturity Date; or
25
(3) default by the Company 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 30 days after
there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Securities then outstanding 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
(4) (A) the failure by the Company or any
Subsidiary to pay Indebtedness in an aggregate principal amount
exceeding $10 million at the later of final maturity or upon expiration
of any applicable grace period with respect to such principal amount,
or (B) acceleration of the maturity of any Indebtedness of the Company
or any Subsidiary, in excess of $10 million, if such failure to pay is
not discharged or such acceleration is not annulled within 10 days
after due notice; or
(5) a decree or order by a court having
jurisdiction in the premises shall have been entered adjudging the
Company or any Significant Subsidiary as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization or
rehabilitation of the Company or any Significant Subsidiary under any
Bankruptcy Law, and such decree or order shall have continued
undischarged and unstayed for a period of 60 days; or a decree or order
of a court having jurisdiction in the premises for the appointment of a
receiver or rehabilitator or custodian or sequestrator or liquidator or
trustee or assignee in bankruptcy or insolvency of the Company or any
Significant Subsidiary or of their respective property or other similar
official, or for the winding up or liquidation of their respective
affairs, shall have been entered, and such decree or order shall have
remained in force undischarged and unstayed for a period of 60 days; or
(6) the Company or any Significant Subsidiary
shall institute proceedings to be adjudicated a voluntary bankrupt, or
shall consent to the filing of a bankruptcy proceeding against any of
them, or shall file a petition or answer or consent seeking
reorganization or rehabilitation under any Bankruptcy Law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver or rehabilitator or custodian or sequestrator
or liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or any Significant Subsidiary or of their respective property
or other similar official, or shall make an assignment for the benefit
of creditors, or shall admit in writing its inability to pay their
respective debts generally as they become due; or
(7) the entry against the Company or any
Significant Subsidiary of one or more judgments, decrees or orders by a
court having jurisdiction in the premises from which no appeal may be
or is taken for the payment of money, either individually or in the
aggregate, in excess of $10 million and the continuance of such
judgment, decree or order unsatisfied and in effect for any period of
60 consecutive days without a stay of execution and there has been
given, by registered or certified mail in the manner set forth in
Section 10.2, to the Company by the Trustee or to the Company and the
Trustee by the
26
Holders of not less than 25% in principal amount of the Securities then
outstanding a written notice specifying such entry and continuance of
such judgment, decree or order and stating that such notice is a
"Notice of Default" hereunder.
SECTION 6.2 Acceleration. If an Event of Default with respect
to the Securities (other than an Event of Default specified in Section 6.1(5) or
(6)) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding by notice to the Company and the Trustee, may declare the Principal
of and accrued but unpaid interest on all the Securities to be due and payable.
Upon such a declaration, such Principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.1(5) or (6) occurs
and is continuing, the Principal of and accrued interest on all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. The Holders
of a majority in aggregate principal amount of the Securities then outstanding
by notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree (other than a judgment
or decree for the payment of Principal or interest or monies due on the
Securities) and if all existing Events of Default have been cured or waived
except nonpayment of Principal or interest that has become due solely because of
such acceleration and the Trustee has been paid all amounts due to it pursuant
to Section 7.7. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.3 Other Remedies. If an Event of Default with
respect to the Securities occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of Principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are, to the extent
permitted by law, cumulative.
SECTION 6.4 Waiver of Past Defaults. The Holders of a majority
in aggregate principal amount of the Securities then outstanding by notice to
the Trustee may waive any past or existing Default and its consequences except
(i) a Default in the payment of the Principal of, or premium, or interest on a
Security or (ii) a Default in respect of a provision that under Section 9.2
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured, and any Event of Default arising therefrom shall be
deemed to have been cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.5 Control by Majority. Upon provision of security or
indemnity reasonably satisfactory to the Trustee, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee with respect to the Securities or of exercising
27
any trust or power conferred on the Trustee. However, the Trustee, which may
rely on opinions of counsel, may refuse to follow any direction that conflicts
with law or this Indenture or that the Trustee determines is unduly prejudicial
to the rights of other Holders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.
SECTION 6.6 Limitation on Suits. A Holder of Securities may
not pursue any remedy with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee previous
written notice stating that an Event of Default has occurred and is
continuing;
(ii) the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding make a written
request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
reasonable indemnity satisfactory to it against any costs, liabilities
or expenses;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of security
or indemnity; and
(v) the Holders of a majority in aggregate
principal amount of the Securities then outstanding do not give the
Trustee a direction inconsistent with the request during such 60-day
period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of Principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may
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
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company, its creditors or any other obligor upon the
Securities, or any of their creditors or the property of the Company or such
other obligor or their creditors and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions,
28
and any custodian, receiver, liquidator or similar official, in any such
judicial proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.7.
SECTION 6.10 Priorities. Any money or other property collected
by the Trustee pursuant to Article VI hereof, or any money or other property
otherwise distributable in respect of the Company's obligations under this
Indenture, shall be applied in the following order:
FIRST: to the Trustee (including any predecessor Trustee) for
amounts due under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the
Securities for Principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for Principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Holder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in aggregate principal amount of the
outstanding Securities.
SECTION 6.12 Waiver of Stay or Extension Laws. The Company (to
the extent it may lawfully do so) shall not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
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ARTICLE VII
Trustee
SECTION 7.1 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon Officers'
Certificates and Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case
of any such Officers' Certificates and Opinions of Counsel which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this subsection does not limit the effect of
subsections (b) or (f) of this Section 7.1;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless it
is proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to subsections (a), (b), (c) and (f) of this
Section 7.1.
(e) The Trustee shall not be liable for interest on any
money or other property received by it or for holding moneys or other property
uninvested, in either case, except as otherwise agreed between the Company and
the Trustee. Money and other property held in trust by the Trustee need not be
segregated from other money or property except to the extent required by law.
30
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 7.1 and to the provisions of
the Trust Indenture Act, where applicable.
SECTION 7.2 Rights of Trustee. (a) The Trustee may
conclusively rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers
or perform any duties hereunder either directly through attorneys and agents,
respectively, and shall not be responsible for the misconduct or negligence of
any attorney or agent appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it
takes, suffers to exist or omits to take in good faith which it believes to be
authorized or within its rights or powers; provided, however, that the Trustee's
conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(g) The Trustee shall not be charged with knowledge of
any Default or Event of Default with respect to the Securities unless either (1)
a Responsible Officer shall have actual knowledge of such Default or Event of
Default or (2) written notice of such Default or Event of Default shall have
been given to a Responsible Officer of the Trustee at the Corporate Trust Office
by the Company or any other obligor on the Securities or by any Holder of the
Securities. Any such notice shall reference this Indenture and the Securities.
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee pursuant to this Indenture, including its rights
to be indemnified, are extended to, and
31
shall be enforceable by, the Trustee in each of its capacities as Registrar and
Paying Agent, as the case may be, hereunder.
(i) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
Officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company with the same rights it would have if it
were not Trustee. Any Paying Agent or Registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities or any offering document, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Defaults. If a Default or an Event of
Default occurs with respect to the Securities and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Holder notice of the
Default within 90 days after it is known to a Responsible Officer or written
notice of it is received by a Responsible Officer of the Trustee. Except in the
case of a Default in payment of Principal of or interest on any Security, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is not opposed to
the interests of Holders.
SECTION 7.6 Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall, if required, mail to each Holder a brief report dated as of such May 15
that complies with Section 313(a) of the Trust Indenture Act. The Trustee also
shall comply with Section 313(b) of the Trust Indenture Act. The Trustee shall
promptly deliver to the Company a copy of any report it delivers to Holders
pursuant to this Section 7.6.
A copy of each report at the time of its mailing to Holders
shall be filed by the Trustee with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7 Compensation and Indemnity. The Company covenants
and agrees to pay to the Trustee (and any predecessor Trustee) from time to time
such compensation for its services as the Company and the Trustee shall from
time to time agree in writing. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an
32
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses (including attorneys' fees and expenses),
disbursements and advances incurred or made by it in accordance with the
provisions of this Indenture, including costs of collection, in addition to such
compensation for its services, except any such expense, disbursement or advance
as may arise from its negligence, willful misconduct or bad faith. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents and counsel. The Trustee shall provide the
Company reasonable notice of any expenditure not in the ordinary course of
business; provided that prior approval by the Company of any such expenditure
shall not be a requirement for the making of such expenditure nor for
reimbursement by the Company thereof. The Company shall indemnify each of the
Trustee, its officers, directors, employees and any predecessor Trustees against
any and all loss, damage, claim, liability or expense (including reasonable
attorneys' fees and expenses), including taxes (other than taxes applicable to
the Trustee's compensation hereunder) incurred by it in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee so to notify the Company shall not
relieve the Company of its obligations hereunder, except to the extent that the
Company has been prejudiced by such failure. The Company shall defend the claim
and the Trustee shall cooperate, to the extent reasonable, in the defense of any
such claim, and, if (in the opinion of counsel to the Trustee) the facts and/or
issues surrounding the claim are reasonably likely to create a conflict with the
Company, the Company shall pay the reasonable fees and expenses of separate
counsel to the Trustee. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through the
Trustee's own willful misconduct, negligence or bad faith. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld or delayed.
To secure the Company's payment obligations in this Section
7.7, the Trustee (including any predecessor Trustee) shall have a lien prior to
the Securities on all money or property held or collected by the Trustee other
than money or property held in trust to pay Principal of and interest on
particular Securities.
The Company's payment obligations pursuant to this Section 7.7
shall survive the satisfaction, discharge and termination of this Indenture, the
resignation or removal of the Trustee and any discharge of this Indenture
including any discharge under any Bankruptcy Law. In addition to and without
prejudice to the rights provided to the Trustee under any of the provisions of
this Indenture, when the Trustee incurs expenses or renders services after the
occurrence of a Default specified in Section 6.1(5) or (6) with respect to the
Company, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Law.
SECTION 7.8 Replacement of Trustee. The Trustee may resign at
any time with 30 days notice to the Company. The Holders of a majority in
principal amount of the Securities then outstanding, may remove the Trustee with
30 days notice to the Trustee and may appoint a successor Trustee, which
successor Trustee shall be reasonably acceptable to the Company. The Company
shall remove the Trustee if:
(i) the Trustee fails to comply with Section
7.10;
33
(ii) the Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes
charge of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company and the Company shall pay
all amounts due and owing to the retiring Trustee under Section 7.7 of the
Indenture. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee shall mail
a notice of its succession to Holders affected by such resignation or removal.
The retiring Trustee shall promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office with respect to
the Securities within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee or the Holders of 10% in principal amount of the Securities
may petition any court of competent jurisdiction at the expense of the Company
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee; provided that such corporation shall
be eligible under this Article VII and Section 310(a) of the Trust Indenture
Act.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor Trustee hereunder or in the
name of the successor to the Trustee; and in all such cases such
34
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the Trust Indenture
Act. The Trustee shall have a combined capital and surplus of at least
$10,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with Section 310(b) of the Trust Indenture
Act; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act and any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met.
Nothing herein shall prevent the Trustee from filing with the
SEC the application referred to in the second to last paragraph of Section
310(b) of the Trust Indenture Act.
SECTION 7.11 Preferential Collection of Claims Against the
Company. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1 Discharge of Liability on Securities; Defeasance.
With respect to the Securities, (a) when (i) the Company delivers to the Trustee
all outstanding Securities for cancellation or (ii) all outstanding Securities
have become due and payable, whether at maturity or as a result of the mailing
of a notice of redemption pursuant to Article III hereof, or the Securities will
become due and payable at their Stated Maturity within one year, or the
Securities are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and, in each case of
this clause (ii), the Company irrevocably deposits or causes to be deposited
with the Trustee funds sufficient to pay at maturity or upon redemption all
outstanding Securities, including interest thereon to maturity or such
redemption date, and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 8.1(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate from the Company and an Opinion of Counsel from the Company that all
conditions precedent provided herein for relating to satisfaction and discharge
of this Indenture have been complied with and at the cost and expense of the
Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at
any time may terminate (i) all of its obligations under the Securities and this
Indenture ("full defeasance option") or (ii) its obligations under Section 4.9
and Section 4.10 and the operation of Section 6.1(4) ("covenant defeasance
option"). The Company may exercise its full defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
35
If the Company exercises its full defeasance option with
respect to the Securities, payment of the Securities may not be accelerated
because of an Event of Default. If the Company exercises its covenant defeasance
option, payment of the Securities may not be accelerated because of an Event of
Default specified in Section 6.1(4).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the
Company's and the Trustee's obligations in Sections 2.3, 2.4, 2.5, 2.9, 4.1,
4.2, 4.8, 7.7, 7.8, 8.3, 8.4, 8.5 and 8.6 shall survive until the Securities
have been paid in full. Thereafter, the Company's and the Trustee's obligations
in Sections 7.7, 8.3, 8.4 and 8.5 shall survive.
SECTION 8.2 Conditions to Defeasance. The Company may exercise
its full defeasance option or its covenant defeasance option with respect to the
Securities only if:
(i) the Company irrevocably deposits or causes
to be deposited in trust with the Trustee money or U.S. Government
Obligations which through the scheduled payment of Principal and
interest in respect thereof in accordance with their terms will provide
cash at such times and in such amounts as will be sufficient to pay
Principal and interest and any other payments when due on all
outstanding Securities (except Securities replaced pursuant to Section
2.9) to maturity or redemption, as the case may be, as evidenced by a
certificate from a nationally recognized firm of independent
accountants delivered to the Trustee expressing their opinion that the
payments of Principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited money
without investment will provide cash at such times and in such amounts
as will be sufficient to pay Principal and interest when due on all
outstanding Securities (except Securities replaced pursuant to Section
2.9) to maturity or redemption, as the case may be;
(ii) No Default or Event of Default with respect
to such Securities shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 6.1(5) or 6.1(6) are concerned, at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until after such 90th day);
(iii) the deposit does not constitute a default
under any other material agreement binding on the Company;
(iv) the Company delivers to the Trustee an
Opinion of Counsel to the effect that either (i) as a result of the
deposit, registration is not required under the Investment Company Act
of 1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds or
(ii) all necessary registrations under said Act have been effected;
(v) in the case of the full defeasance option,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received
36
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(vi) in the case of the covenant defeasance
option, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; and
(vii) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
as contemplated by this Article VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.3 Application of Trust Money. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations either directly or through the Paying Agent as the
Trustee may determine and in accordance with this Indenture to the payment of
Principal of and interest on the Securities.
SECTION 8.4 Repayment to the Company. The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any excess
money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon written request any money
held by them for the payment of Principal or interest that remains unclaimed for
two years after the date of payment of such Principal and interest, and,
thereafter, Holders entitled to the money must look to the Company for payment
as general creditors.
Anything in this Section 8.4 to the contrary notwithstanding,
in the absence of a written request from the Company to return unclaimed funds
to the Company, the Trustee shall from time to time deliver all unclaimed funds
to or as directed by applicable escheat authorities, as determined by the
Trustee in its sole discretion, in accordance with the customary practices and
procedures of the Trustee. Any unclaimed funds held by the Trustee pursuant to
this Section 8.4 shall be held uninvested and without any liability for
interest.
SECTION 8.5 Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such
37
U.S. Government Obligations other than any such tax, fee or other charge which
by law is for the account of the Holders of the defeased Securities; provided
that the Trustee shall be entitled to charge any such tax, fee or other charge
to such Holder's account.
SECTION 8.6 Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that (a) if
the Company has made any payment of interest on or Principal of any Securities
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent and (b)
unless otherwise required by any legal proceeding or any order or judgment of
any court or governmental authority, the Trustee or Paying Agent shall return
all such money and U.S. Government Obligations to the Company promptly after
receiving a written request therefor at any time, if such reinstatement of the
Company's obligations has occurred and continues to be in effect.
ARTICLE IX
Amendments
SECTION 9.1 Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or consent
of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V;
(iii) to add any additional Events of Default;
(iv) to add to the covenants of the Company for
the benefit of the Holders of all the Securities or to surrender any
right or power herein conferred upon the Company;
(v) to add one or more guarantees for the
benefit of Holders of the Securities;
(vi) to secure the Securities pursuant to the
terms of this Indenture;
(vii) to add or appoint a successor or separate
Trustee or other agent;
(viii) to comply with any requirements in
connection with qualifying this Indenture under the Trust Indenture
Act;
38
(ix) to provide for uncertificated Securities in
addition to or in place of Definitive Securities; provided, however,
that the uncertificated Securities are issued in registered form for
purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are as described in Section 163(f)(2)(B) of
the Code;
(x) to provide for the issuance of the Exchange
Securities, which will have terms substantially identical in all
material respects to the Initial Securities (except that the transfer
restrictions contained in the Initial Securities will be modified or
eliminated, as appropriate);
(xi) to provide for the issuance of any
Additional Securities, which will have terms substantially identical in
all material respects to the Initial Securities or the Exchange
Securities (in each case, other than with respect to the date of
issuance, issue price and amount of interest payable on the first
payment date applicable thereto), as the case may be, and which will be
treated, together with any outstanding Initial Securities and any
Additional Securities, as a single issue of Securities; and
(xii) to change any other provision if the change
does not adversely affect the interests of any Holder.
After an amendment under this Section 9.1 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.1.
SECTION 9.2 With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any Holder
but with the written consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a tender offer or exchange for Securities). However, without the
consent of each Holder affected, an amendment may not:
(i) change the Stated Maturity of the Principal
of, or installment of interest on, any Security;
(ii) reduce the principal amount of, or premium,
if any, or the rate of interest on, or any other amounts due on any
Securities (including amounts due upon optional redemption or
otherwise);
(iii) reduce the principal amount of any Security
that would be due and payable upon a declaration of acceleration of the
Stated Maturity thereof;
(iv) change the place of payment or the coin or
currency in which the Principal of or interest on any Security is
payable;
(v) impair the right of any Holder to institute
suit for the enforcement of any payment on or after the Stated Maturity
of any Security;
39
(vi) reduce the percentage in principal amount of
the outstanding Securities, the consent of whose Holders is required in
order to modify or amend the Indenture;
(vii) modify any of the provisions of this
Indenture regarding the waiver of past defaults and the waiver of
certain covenants by Holders except to increase any percentage vote
required or to provide that certain other provisions of the Indenture
cannot be modified or waived without the consent of the Holder of each
Security affected thereby; or
(viii) modify any of the above provisions of this
Section 9.2.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective,
the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.2.
SECTION 9.3 Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the Trust
Indenture Act as then in effect.
SECTION 9.4 Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. After an
amendment or waiver becomes effective with respect to the Securities, it shall
bind every Holder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date.
SECTION 9.5 Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Company shall provide in writing
to the Trustee an appropriate notation to be placed on the Security regarding
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determine, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Failure to make the appropriate notation or to issue a new Security shall
not affect the validity of such amendment.
40
SECTION 9.6 Trustee To Sign Amendments. The Trustee shall sign
any amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, in addition to the documents required by Section 10.4, an Officers'
Certificate of the Company and an Opinion of Counsel stating that such amendment
complies with the provisions of this Article IX and that the supplemental
indenture evidencing such amendment constitutes the legal valid and binding
obligation of the Company in accordance with its terms subject to customary
exceptions.
SECTION 9.7 Payment for Consent. Neither the Company nor any
affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
of a Security for, or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders of a Securities that so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE X
Miscellaneous
SECTION 10.1 Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with the duties imposed by, or
with another provision included or which is required to be included in this
Indenture by the Trust Indenture Act, the duty or provision required by the
Trust Indenture Act shall control.
SECTION 10.2 Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Infinity Property and Casualty Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile Number: 000-000-0000
Attention: General Counsel
if to the Trustee:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: 000-000-0000
Attention: Corporate Trust Department
41
Any notices between the Company and the Trustee may be by
facsimile or email, receipt confirmed and the original to follow by guaranteed
overnight courier. The Company or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed
to the Holder at the Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
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. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 10.3 Communication by Holders with other Holders.
Holders may communicate pursuant to Section 312(b) of the Trust Indenture Act
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act.
SECTION 10.4 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(i) an Officers' Certificate of the Company in
form reasonably satisfactory to the Trustee 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
(ii) an Opinion of Counsel of the Company in form
reasonably satisfactory to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.5 Statements Required in Certificate or Opinion.
The Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include:
(i) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
42
(iv) a statement as to whether or not, in the
opinion of such individual, such covenant or condition has been
complied with.
SECTION 10.6 When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company (an "Affiliate") shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which a Responsible Officer of the
Trustee knows are so owned shall be so disregarded. Also, subject to the
foregoing, only Securities outstanding at the time shall be considered in any
such determination.
SECTION 10.7 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 10.8 Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
SECTION 10.9 No Recourse Against Others. A director, officer,
employee or stockholder (other than the Company), as such, of the Company shall
not have any liability for any obligations of the Company under the Securities,
this Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.
SECTION 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
SECTION 10.11 Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 10.12 Variable Provisions. The Company initially
appoints the Trustee as Paying Agent and Registrar and Securities Custodian with
respect to any Global Securities.
SECTION 10.13 Qualification of Indenture. The Company shall
qualify this Indenture under the Trust Indenture Act in accordance with the
terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the
Securities and printing this Indenture and the Securities. The Trustee shall be
entitled to receive from the Company any such Officers' Certificates, Opinions
of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the Trust Indenture Act.
43
SECTION 10.14 Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 10.15 Separability Clause. In case any provision in
this Indenture or any Security shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
44
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
INFINITY PROPERTY AND CASUALTY
CORPORATION
By______________________________________
Name:
Title:
AMERICAN STOCK TRANSFER & TRUST
COMPANY as Trustee
By______________________________________
Name:
Title:
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
INFINITY PROPERTY AND CASUALTY CORPORATION
5.50% SENIOR NOTES DUE 2014
No.1 Principal Amount $200,000,000,
(subject to adjustment as reflected in the
Schedule of Increases and Decreases in
Global Security attached hereto)
CUSIP NO. 00000XXX0
Infinity Property and Casualty Corporation, an Ohio
corporation, (together with its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company") for value received,
promises to pay to Cede & Co., or registered assigns, the principal sum of Two
Hundred Million Dollars ($200,000,000), subject to adjustment as reflected in
the Schedule of Increases and Decreases in Global Security attached hereto, on
February 18, 2014 at the office or agency of the Company maintained for such
purpose.
Interest Payment Dates: February 18 and August 18 of each
year, commencing on August 18, 2004.
Record Dates: February 3 and August 3 of each year.
Additional provisions of this Security are set forth on the
other side of this Security.
Unless the certificate of authentication hereon has been duly
executed by the Trustee by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture, or be valid
for any purpose.
A-1
INFINITY PROPERTY AND CASUALTY
CORPORATION
By______________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Trustee
By_____________________________
Authorized Signatory
Dated:_______ __, 20__
A-2
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
[Reverse of Security]
5.50% Senior Notes due 2014
1. Interest
Infinity Property and Casualty Corporation, an Ohio
corporation (together with its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above; provided, however, that if a Registration Default (as defined in the
Registration Rights Agreement defined in paragraph 7 below) occurs, additional
interest will accrue on this Security at a rate of 0.25% per annum. If a
Registration Default occurs and is continuing for a period more than 90 days,
then the amount of additional interest the Company is required to pay on this
Security will increase, effective from and after the 91st day in that period, by
an additional 0.25% per annum until all Registration Defaults have been cured.
However, in no event will the rate of additional interest exceed 0.50% per
annum. Such additional interest is payable in addition to any other interest
payable from time to time with respect to this Security. The Trustee will not be
deemed to have notice of a Registration Default until a Responsible Officer
shall have received actual notice of such Registration Default.
The Company will pay interest semiannually on February 18 and
August 18 of each year (each such date, an "Interest Payment Date"), commencing
on August 18. Interest on the Securities will accrue from February 17, 2004, or
from the most recent date to which interest has been paid on the Securities.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment
By no later than 11:00 a.m. (New York City time) on the date
on which any Principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such Principal and/or interest. The Company will pay interest
(except defaulted interest and interest on Securities redeemed after a record
date and on or prior to the corresponding interest payment date) to the Persons
who are registered Holders of Securities at the close of business on the
February 18 or August 18 next preceding the interest payment date. Holders must
surrender Securities to a Paying Agent to collect Principal payments. The
Company will pay Principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
Payments in respect of Securities represented by a Global Security (including
Principal, premium, if any, and interest) will be made by the transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Company may make all payments in respect of a Definitive Security
(including Principal, premium, if any, and interest) by mailing a check to the
registered address of each Holder thereof or by wire transfer to an account
located in the United States maintained by the Holder.
A-3
3. Paying Agent and Registrar
Initially, American Stock Transfer & Trust Company, a New York
corporation (together with its successors and assigns, the "Trustee"), will act
as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent or Registrar without notice to any Holder. The Company or any of its
domestically organized wholly owned Subsidiaries may act as Paying Agent.
4. Indenture
This Security is one of the duly authorized issue of
securities of the Company designated as its 5.50% Senior Notes due 2014 (the
"Securities") limited (except as otherwise provided in the Indenture referred to
below) in the aggregate principal amount of $200.0 million. The Company issued
the Securities under an Indenture dated as of February 17, 2004 (as it may be
amended or supplemented from time to time in accordance with the terms thereof,
the "Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "Trust Indenture
Act"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of those terms.
The Securities are senior obligations of the Company. This
Security is one of the Initial Securities referred to in the Indenture. The
Securities include the Initial Securities issued on the Issue Date, any
Additional Securities issued in accordance with Section 2.15 of the Indenture
and the Exchange Securities issued in exchange for the Initial Securities or
Additional Securities pursuant to the Indenture. The Initial Securities, any
Additional Securities and the Exchange Securities are treated as a single class
of securities under the Indenture. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to create Liens, sell Voting
Stock of Significant Subsidiaries and enter into mergers and consolidations.
5. Optional Redemption
The Securities are redeemable, in whole or in part, at any
time and from time to time, at the option of the Company, at a redemption price
equal to the greater of (i) 100% of the Principal amount of such Securities and
(ii) the sum of the present values of the remaining scheduled payments of
Principal and interest thereon (exclusive of interest accrued to the date of
redemption) discounted to the redemption date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20
basis points, plus accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date for
the Securities, the rate per annum equal to the semiannual equivalent yield to
maturity or interpolated (on a day count basis) 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 redemption date.
A-4
"Comparable Treasury Issue" means the United States Treasury
security or securities selected by an Independent Investment Banker as having an
actual or interpolated maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities to be redeemed.
"Comparable Treasury Price" means, with respect to any
redemption date for the Securities, (a) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations or (b) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (x) each of UBS Securities
LLC and Xxxxxx Brothers Inc. or their respective affiliates; provided, however,
that if either of the foregoing shall cease to be a primary U.S. government
securities dealer in the United States (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer and (y) two
other Primary Treasury Dealers selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, 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 as of 3:30
p.m., New York City time, on the third Business Day preceding such redemption
date.
Except as set forth above, the Securities will not be
redeemable by the Company prior to maturity.
The Securities will not be entitled to the benefit of any
sinking fund.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Securities to be redeemed at his or her registered address. Securities in
denominations of Principal amount larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Securities (or portions thereof)
to be redeemed on the redemption date is deposited with the Paying Agent on or
before 11:00 a.m. (New York City time) on the redemption date and certain other
conditions are satisfied, on and after such date interest ceases to accrue on
such Securities (or such portions thereof) called for redemption.
7. Registration Rights
The Company is party to an Exchange and Registration Rights
Agreement, dated as of February 17, 2004, between the Company and UBS Securities
LLC and Xxxxxx Brothers
A-5
Inc. (the "Registration Rights Agreement"), pursuant to which the Company is
obligated to pay Additional Interest (as defined therein) upon the occurrence of
certain Registration Defaults (as defined therein).
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may register, transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) for a period beginning 15 days before a selection of Securities
to be redeemed and ending on the date of such selection.
9. Persons Deemed Owners
The registered holder of this Security may be treated as the
owner of it for all purposes.
10. Unclaimed Money
If money for the payment of Principal or interest remains
unclaimed for two years after the date of payment of Principal and interest, the
Trustee or Paying Agent shall pay the money back to the Company at its request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Company and not to
the Trustee for payment.
Anything in this Section 10 to the contrary notwithstanding,
in the absence of a written request from the Company to return unclaimed funds
to the Company, the Trustee shall from time to time deliver all unclaimed funds
to or as directed by applicable escheat authorities, as determined by the
Trustee in its sole discretion, in accordance with the customary practices and
procedures of the Trustee.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of Principal of and interest on the
Securities to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and (ii) any default or noncompliance with any provision of the Indenture or the
Securities may be waived with the written consent of the Holders of a majority
in principal amount of the outstanding Securities. However, the Indenture
requires the consent of each Holder that would be affected for certain specified
amendments or
A-6
modifications of the Indenture and the Securities. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend the Indenture or the Securities to, among other things,
cure any ambiguity, omission, defect or inconsistency, or to comply with Article
V of the Indenture, or to add any additional Events of Default, or to add
additional covenants of or surrender rights and powers conferred on the Company,
or to add or appoint a successor or separate trustee or other agent, or to
comply with any requirements in connection with qualifying the Indenture under
the Trust Indenture Act, or to provide for uncertificated Securities in addition
to or in place of Definitive Securities, or to change any other provision if the
change does not adversely affect the interests of any Holder.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in
payment of Principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 of the Securities, upon declaration or otherwise; (ii) default for
30 days in payment of interest on the Securities; (iii) failure by the Company
to comply with other agreements in the Indenture or the Securities for 30 days
after notice; (iv) failure to pay when due or certain accelerations of other
indebtedness of the Company or any Significant Subsidiary in an aggregate amount
of $10,000,000 or more, subject to notice and (v) certain events of bankruptcy
or insolvency involving the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate Principal amount of the Securities
may declare all the Securities to be due and payable immediately. Certain events
of bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in Principal amount
of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of Principal or
interest) if it in good faith determines that withholding notice is not opposed
to their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company and may otherwise deal with the Company
with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder (other than the
Company), as such, of the Company shall not have any liability for any
obligations of the Company under the Securities, the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.
A-7
16. Authentication
This Security shall not be valid until an authorized officer
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
17. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the
entirety), JT TEN (joint tenants with rights of survivorship and not as tenants
in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors Act).
18. CUSIP Numbers
The Company has caused CUSIP numbers and/or other similar
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers and/or other similar numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for
him.
Date:____________________ Your Signature:___________________
Signature Guarantee:______________________________
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Definitive Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the last
date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being transferred:
CHECK ONE BOX BELOW:
(1) [] to the Company or any of its Subsidiaries; or
(2) [] for so long as the Securities are eligible for resale pursuant
to Rule 144A under the Securities Act, to a person it
reasonably believes is a "Qualified Institutional Buyer" as
defined in Rule 144A under the Securities Act that purchases
for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the transfer
is being made in reliance on Rule 144A; or
(3) [] pursuant to Rule 144 under the Securities Act or any other
available exemption from the registration requirements of the
Securities Act; or
(4) [] pursuant to a registration statement that has been declared
effective under the Securities Act.
Unless one of the boxes is checked, the Trustee may refuse to register any of
the certificated Securities evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided, however, that if box
(3) is checked, the Trustee may require, prior to registering any such transfer
of the Securities, such legal opinions, certifications and other
A-9
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act.
________________________________________
Signature
Signature Guarantee:
__________________________________ ________________________________________
Signature
(Signature must be guaranteed by a
participant in a recognized Signature
Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
___________________________________________________________________
A-10
TO BE COMPLETED BY PURCHASER IF BOX (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Definitive Security for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:___________________ ________________________________________
NOTICE: To be executed by an executive
officer
Signature Guarantee:
________________________________ ________________________________________
Signature
(Signature must be guaranteed by a
participant in a recognized Signature
Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
________________________________________________________
A-11
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of this Signature of authorized
Date of Amount of decrease in Principal Amount of increase in Principal Global Security following officer of Trustee or
Exchange Amount of this Global Security Amount of this Global Security such decrease or increase Securities Custodian
-------- ------------------------------- ------------------------------- ------------------------- -----------------------
A-12
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
INFINITY PROPERTY AND CASUALTY CORPORATION
5.50% SENIOR NOTES DUE 2014
No. __ Principal Amount $200,000,000,
(subject to adjustment as reflected in the
Schedule of Increases and Decreases in
Global Security attached hereto)
CUSIP NO. 00000XXX0
Infinity Property and Casualty Corporation, an Ohio
corporation, (together with its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company") for value received,
promises to pay to Cede & Co. , or registered assigns, the principal sum of Two
Hundred Million Dollars ($200,000,000) on February 18, 2014.
Interest Payment Dates: February 18 and August 18 of each
year, commencing on [________] [first interest payment date relating to Exchange
Securities].
Record Dates: February 3 and August 3 of each year.
Additional provisions of this Security are set forth on the
other side of this Security.
Unless the certificate of authentication hereon has been duly
executed by the Trustee by manual signature of an authorized officer, this
Security shall not be entitled to any benefit under the Indenture, or be valid
for any purpose.
INFINITY PROPERTY AND CASUALTY
CORPORATION
By_________________________________________
Name:
Title:
B-1
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned Indenture.
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Trustee
By_____________________________
Authorized Officer
Dated:________ ___, 20___
B-2
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
5.50 % Senior Notes due 2014
1. Interest
Infinity Property and Casualty Corporation, an Ohio
corporation (together with its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above.
The Company will pay interest semiannually on February 18 and
August 18 of each year (each such date, an "Interest Payment Date"), commencing
on [________] [first interest payment date relating to Exchange Securities].
Interest on the Securities will accrue from February 17, 2004, or from the most
recent date to which interest has been paid on the Securities. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By no later than 11:00 a.m. (New York City time) on the date
on which any Principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such Principal and/or interest. The Company will pay interest
(except defaulted interest and interest on Securities redeemed after a record
date and on or prior to the corresponding interest payment date) to the Persons
who are registered Holders of Securities at the close of business on the
February 18 or August 18 next preceding the Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect Principal payments. The
Company will pay Principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
Payments in respect of Securities represented by a Global Security (including
Principal, premium, if any, and interest) will be made by the transfer of
immediately available funds to the accounts specified by The Depository Trust
Company. The Company may make all payments in respect of a Definitive Security
(including Principal, premium, if any, and interest) by mailing a check to the
registered address of each Holder thereof or by wire transfer to an account
located in the United States maintained by the Holder.
3. Paying Agent and Registrar
Initially, American Stock Transfer & Trust Company, a New York
corporation (together with its successors and assigns the "Trustee"), will act
as Paying Agent and Registrar. The Company may appoint and change any Paying
Agent or Registrar without notice to any Holder. The Company or any of its
domestically organized wholly owned Subsidiaries may act as Paying Agent.
4. Indenture
The Company issued the Securities under an Indenture dated as
of February 17, 2004 (as it may be amended or supplemented from time to time in
accordance with the terms
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thereof, the "Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of the Indenture (the "Trust Indenture
Act"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Holders are referred to the Indenture and the Trust Indenture Act for a
statement of those terms.
The Securities are senior obligations of the Company. This
Security is one of the Exchange Securities referred to in the Indenture. The
Securities include the Initial Securities issued on the Issue Date, any
Additional Securities issued in accordance with Section 2.15 of the Indenture
and any Exchange Securities issued in exchange for the Initial Securities
pursuant to the Indenture and the Registration Rights Agreement. The Initial
Securities, any Additional Securities and the Exchange Securities are treated as
a single class of securities under the Indenture. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to create Liens,
sell Voting Stock of Significant Subsidiaries and enter into mergers and
consolidations.
5. Optional Redemption
The Securities are redeemable, in whole or in part, at any
time and from time to time, at the option of the Company, at a redemption price
equal to the greater of (i) 100% of the Principal amount of such Securities and
(ii) the sum of the present values of the remaining scheduled payments of
Principal and interest thereon (exclusive of interest accrued to the date of
redemption) discounted to the redemption date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20
basis points, plus accrued interest thereon to the date of redemption.
"Treasury Rate" means, with respect to any redemption date for
the Securities, the rate per annum equal to the semiannual equivalent yield to
maturity or interpolated (on a day count basis) 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 redemption date.
"Comparable Treasury Issue" means the United States Treasury
security or securities selected by an Independent Investment Banker as having an
actual or interpolated maturity comparable to the remaining term of the
Securities to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities to be redeemed.
"Comparable Treasury Price" means, with respect to any
redemption date for the Securities, (a) the average of the Reference Treasury
Dealer Quotations for such redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations or (b) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Trustee after consultation with the Company.
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"Reference Treasury Dealer" means (x) each of UBS Securities
LLC and Xxxxxx Brothers Inc. or their respective affiliates; provided, however,
that if either of the foregoing shall cease to be a primary U.S. government
securities dealer in the United States (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer and (y) two
other Primary Treasury Dealers selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, 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 as of 3:30
p.m., New York City time, on the third Business Day preceding such redemption
date.
Except as set forth above, the Securities will not be
redeemable by the Company prior to maturity.
The Securities will not be entitled to the benefit of any
sinking fund.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Securities to be redeemed at his registered address. Securities in
denominations of Principal amount larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Securities (or portions thereof)
to be redeemed on the redemption date is deposited with the Paying Agent on or
before 11:00 a.m. (New York City time) on the redemption date and certain other
conditions are satisfied, on and after such date interest ceases to accrue on
such Securities (or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may register transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption (except, in
the case of a Security to be redeemed in part, the portion of the Security not
to be redeemed) for a period beginning 15 days before a selection of Securities
to be redeemed and ending on the date of such selection.
8. Persons Deemed Owners
The registered holder of this Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money
If money for the payment of Principal or interest remains
unclaimed for two years after the date of payment of Principal and interest, the
Trustee or Paying Agent shall pay the
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money back to the Company at its request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look only to the Company and not to the Trustee for payment.
Anything in this Section 9 to the contrary notwithstanding, in
the absence of a written request from the Company to return unclaimed funds to
the Company, the Trustee shall from time to time deliver all unclaimed funds to
or as directed by applicable escheat authorities, as determined by the Trustee
in its sole discretion, in accordance with the customary practices and
procedures of the Trustee.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of Principal of and interest on the
Securities to redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and (ii) any default or noncompliance with any provision of the Indenture or the
Securities may be waived with the written consent of the Holders of a majority
in principal amount of the outstanding Securities. However, the Indenture
requires the consent of each Holder that would be affected for certain specified
amendments or modifications of the Indenture and the Securities. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend the Indenture or the Securities
to, among other things, cure any ambiguity, omission, defect or inconsistency,
or to comply with Article V of the Indenture, or to add any additional Events of
Default, or to add additional covenants of or surrender rights and powers
conferred on the Company, or to add or appoint a successor or separate trustee
or other agent, or to comply with any requirements in connection with qualifying
the Indenture under the Trust Indenture Act, or to provide for uncertificated
Securities in addition to or in place of Definitive Securities, or to change any
other provision if the change does not adversely affect the interests of any
Holder.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in
payment of Principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 of the Securities, upon declaration or otherwise; (ii) default for
30 days in payment of interest on the Securities; (iii) failure by the Company
to comply with other agreements in the Indenture or the Securities for sixty
days after notice; (iv) failure to pay when due or certain accelerations of
other indebtedness of the Company or any Significant Subsidiary in an aggregate
amount of $10,000,000 or more, subject to notice and (v) certain events of
bankruptcy or insolvency involving the Company or any Significant Subsidiary.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in aggregate Principal amount of the Securities
may declare all the Securities to be due
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and payable immediately. Certain events of bankruptcy or insolvency are Events
of Default which will result in the Securities being due and payable immediately
upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in Principal amount
of the Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing Default or Event
of Default (except a Default or Event of Default in payment of Principal or
interest) if it in good faith determines that withholding notice is not opposed
to their interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company and may otherwise deal with the Company
with the same rights it would have if it were not Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder (other than the
Company), as such, of the Company shall not have any liability for any
obligations of the Company under the Securities, the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.
15. Authentication
This Security shall not be valid until an authorized officer
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (tenants in common), TEN ENT (tenants by the
entirety), JT TEN (joint tenants with rights of survivorship and not as tenants
in common), CUST (custodian) and U/G/M/A (Uniform Gift to Minors Act).
17. CUSIP Numbers
The Company has caused CUSIP numbers and/or other similar
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers and/or other similar numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
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18. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint [______] agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date:____________________ Your Signature:______________________
Signature Guarantee: ______________________________
(Signature must be guaranteed by a participant in a recognized Signature
Guarantee Medallion Program or other signature guarantor program reasonably
acceptable to the Trustee)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
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EXHIBIT C - Form of
Rule 144A Certificate
RULE 144A CERTIFICATE
(For transfers pursuant to Section
2.6 of the Indenture)
To: American Stock Transfer & Trust Company,
as Trustee
Re: 5.50% Senior Notes due 2014 of
Infinity Property and Casualty Corporation (the
"Securities")
Reference is made to the Indenture, dated as of February 17,
2004, (the "Indenture"), between Infinity Property and Casualty Corporation (the
"Company") and American Stock Transfer & Trust Company, as Trustee. Terms used
herein and defined in the Indenture or in Rule 144 under the U.S. Securities Act
of 1933, as amended (the "Securities Act") are used herein as so defined.
This certificate relates to U.S.$________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). __________________________
CERTIFICATE No(s). ____________________
The person in whose name this certificate is executed below (the "undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through DTC or an Agent Member in the name of the undersigned, as or on behalf
of the Owner. If the Specified Securities are not represented by a Global
Security, they are registered in the name of the Undersigned, as or on behalf of
the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Rule 144A Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as:
1. Rule 144A Transfers. If the transfer is being
effected in accordance with Rule 144A:
(a) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf reasonably believe is
a "qualified institutional buyer" within
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EXHIBIT C - Form of
Rule 144A Certificate
the meaning of Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(b) the Owner and any person acting on its behalf have
taken reasonable steps to ensure that the Transferee is aware that the Owner is
relying on Rule 144A in connection with the transfer; and
2. Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(a) the transfer is occurring after [________] and is
being effected in accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(b) the transfer is occurring after [________] and the
Owner is not, and during the preceding three months has not been, an affiliate
of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
____________________________________________________
(Print the name of the undersigned, as such term is
defined in the second paragraph of this certificate)
By:_________________________________________________
Name:
Title:
(If the undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the undersigned must be stated)
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