Exhibit 4.6
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FBL FINANCIAL GROUP, INC.
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
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INDENTURE
DATED AS OF APRIL 12, 2004
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5.85% SENIOR NOTES DUE 2014
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CROSS-REFERENCE TABLE
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1)................................................................. 6.9
(a)(2)................................................................. 6.9
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 6.9
(b).................................................................... 6.8
(c).................................................................... N.A.
311(a).................................................................... 6.13
(b).................................................................... 6.13
(c).................................................................... N.A.
312(a).................................................................... 7.2
(b).................................................................... 7.2
(c).................................................................... 7.2
313(a).................................................................... 7.3
(b)(1)................................................................. N.A.
(b)(2)................................................................. 7.3
(c).................................................................... 1.6, 7.3
(d).................................................................... 7.3
314(a).................................................................... 1.3, 1.6, 7.4
(b).................................................................... N.A.
(c)(1)................................................................. 1.3
(c)(2)................................................................. 1.3
(c)(3)................................................................. N.A.
(d).................................................................... N.A.
(e).................................................................... 1.3
(f).................................................................... N.A.
315(a).................................................................... 6.1, 6.3
(b).................................................................... 6.2
(c).................................................................... 6.1
(d).................................................................... 6.1
(e).................................................................... 6.1
316(a) (last sentence).................................................... 1.1 (definition of
"Outstanding")
(a)(1)(A).............................................................. 5.12
(a)(1)(B).............................................................. 5.13
(a)(2)................................................................. N.A.
(b).................................................................... 5.8
(c).................................................................... 1.5
317(a)(1)................................................................. 5.5
(a)(2)................................................................. 5.5
(b).................................................................... 10.3
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the
Indenture.
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TRUST INDENTURE ACT SECTION INDENTURE SECTION
318(a).................................................................... 1.8
(b).................................................................... N.A.
(c).................................................................... 1.8
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the
Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................1
SECTION 1.1 Definitions..........................................................................1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act....................................9
SECTION 1.3 Compliance Certificates and Opinions.................................................9
SECTION 1.4 Form of Documents Delivered to Trustee..............................................10
SECTION 1.5 Acts of Holders; Record Dates.......................................................10
SECTION 1.6 Notices, Etc., to Trustee and Company...............................................11
SECTION 1.7 Notice to Holders; Waiver...........................................................12
SECTION 1.8 Conflict with Trust Indenture Act...................................................12
SECTION 1.9 Effect of Headings and Table of Contents............................................12
SECTION 1.10 Successors and Assigns..............................................................12
SECTION 1.11 Separability Clause.................................................................12
SECTION 1.12 Benefits of Indenture...............................................................13
SECTION 1.13 Governing Law.......................................................................13
SECTION 1.14 Legal Holidays......................................................................13
ARTICLE II. SECURITY FORMS.............................................................................13
SECTION 2.1 Forms Generally.....................................................................13
SECTION 2.2 Form of Securities..................................................................14
SECTION 2.3 Form of Legend for Securities.......................................................14
SECTION 2.4 Form of Trustee's Certificate of Authentication.....................................16
ARTICLE III. THE SECURITIES............................................................................16
SECTION 3.1 Title and Terms.....................................................................16
SECTION 3.2 Denominations.......................................................................17
SECTION 3.3 Execution, Authentication, Delivery and Dating......................................17
SECTION 3.4 Registration, Registration of Transfer and Exchange.................................18
SECTION 3.5 Mutilated, Destroyed, Lost and Stolen Securities....................................23
SECTION 3.6 Payment of Interest; Interest Rights Preserved......................................23
SECTION 3.7 Persons Deemed Owners...............................................................24
SECTION 3.8 Cancellation........................................................................25
SECTION 3.9 Computation of Interest.............................................................25
ARTICLE IV. SATISFACTION AND DISCHARGE.................................................................25
SECTION 4.1 Satisfaction and Discharge of Indenture.............................................25
SECTION 4.2 Application of Trust Money..........................................................26
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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ARTICLE V. REMEDIES....................................................................................26
SECTION 5.1 Events of Default...................................................................26
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment..................................28
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.....................29
SECTION 5.4 Trustee May File Proofs of Claim....................................................29
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.........................30
SECTION 5.6 Application of Money Collected......................................................30
SECTION 5.7 Limitation on Suits.................................................................30
SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest....................31
SECTION 5.9 Restoration of Rights and Remedies..................................................31
SECTION 5.10 Rights and Remedies Cumulative......................................................31
SECTION 5.11 Delay or Omission Not Waiver........................................................31
SECTION 5.12 Control by Holders..................................................................32
SECTION 5.13 Waiver of Past Defaults.............................................................32
SECTION 5.14 Undertaking for Costs...............................................................32
SECTION 5.15 Waiver of Stay or Extension Laws....................................................33
ARTICLE VI. THE TRUSTEE................................................................................33
SECTION 6.1 Certain Duties and Responsibilities.................................................33
SECTION 6.2 Notice of Defaults..................................................................33
SECTION 6.3 Certain Rights of Trustee...........................................................33
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities..............................34
SECTION 6.5 May Hold Securities.................................................................34
SECTION 6.6 Money Held in Trust.................................................................35
SECTION 6.7 Compensation and Reimbursement......................................................35
SECTION 6.8 Disqualification; Conflicting Interests.............................................35
SECTION 6.9 Corporate Trustee Required; Eligibility.............................................35
SECTION 6.10 Resignation and Removal; Appointment of Successor..................................36
SECTION 6.11 Acceptance of Appointment by Successor..............................................37
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.........................37
SECTION 6.13 Preferential Collection of Claims Against Company...................................37
SECTION 6.14 Appointment of Authenticating Agent.................................................38
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.........................................39
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders...........................39
SECTION 7.2 Preservation of Information; Communications to Holders..............................39
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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SECTION 7.3 Reports by Trustee..................................................................40
SECTION 7.4 Reports by Company..................................................................40
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.....................................40
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms................................40
SECTION 8.2 Successor Substituted...............................................................41
ARTICLE IX. SUPPLEMENTAL INDENTURES....................................................................42
SECTION 9.1 Supplemental Indentures Without Consent of Holders..................................42
SECTION 9.2 Supplemental Indentures with Consent of Holders.....................................42
SECTION 9.3 Execution of Supplemental Indentures................................................43
SECTION 9.4 Effect of Supplemental Indentures...................................................43
SECTION 9.5 Conformity with Trust Indenture Act.................................................43
SECTION 9.6 Reference in Securities to Supplemental Indentures..................................43
ARTICLE X. COVENANTS...................................................................................44
SECTION 10.1 Payment of Principal and Interest...................................................44
SECTION 10.2 Maintenance of Office or Agency.....................................................44
SECTION 10.3 Money for Security Payments to Be Held in Trust.....................................44
SECTION 10.4 Statement by Officers as to Default.................................................45
SECTION 10.5 Existence...........................................................................45
SECTION 10.6 Maintenance of Properties...........................................................46
SECTION 10.7 Payment of Taxes and Other Claims...................................................46
SECTION 10.8 Negative Pledge.....................................................................46
SECTION 10.9 No Disposition......................................................................46
SECTION 10.10 Rule 144A and Other Information.....................................................47
SECTION 10.11 Waiver of Certain Covenants.........................................................47
SECTION 10.12 Ability of the Company to Hold Securities...........................................48
ARTICLE XI. REDEMPTION OF SECURITIES...................................................................48
SECTION 11.1 Right of Redemption.................................................................48
SECTION 11.2 Applicability of Article............................................................48
SECTION 11.3 Election to Redeem; Notice to Trustee...............................................48
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed...................................48
SECTION 11.5 Notice of Redemption................................................................49
SECTION 11.6 Deposit of Redemption Price.........................................................49
SECTION 11.7 Securities Payable on Redemption Date...............................................49
SECTION 11.8 Securities Redeemed in Part.........................................................50
ARTICLE XII. DEFEASANCE AND COVENANT DEFEASANCE........................................................50
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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SECTION 12.1 Company's Option to Effect Defeasance or Covenant Defeasance........................50
SECTION 12.2 Defeasance and Discharge............................................................50
SECTION 12.3 Covenant Defeasance.................................................................51
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance.....................................51
SECTION 12.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions..........................................................53
SECTION 12.6 Reinstatement.......................................................................53
SECTION 12.7 Qualifying Trustee..................................................................54
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security or Private Exchange Security
Exhibit C - Form of Transfer Certificate: Rule 144A Global Security to
Regulation S Global Security
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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INDENTURE, dated as of April 12, 2004, between FBL Financial Group,
Inc., a corporation duly organized and existing under the laws of the State of
Iowa (herein called the "Company"), having its principal office at 0000
Xxxxxxxxxx Xxxxxx, Xxxx Xxx Xxxxxx, Xxxx 00000, and Deutsche Bank Trust Company
Americas, a banking corporation duly organized and existing under the laws of
the State of
New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 5.85%
Senior Notes due 2014 (herein called the "Initial Securities") and 5.85% Senior
Exchange Notes due 2014 (herein called the "Exchange Securities"; and,
collectively with the Initial Securities, the "Securities") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase from time to
time of the Securities by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation;
(4) 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; and
(5) references to sections of or rules under the Securities Act
will be deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.5.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the State of
New York
are authorized or obligated by law or executive order to close.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg,
or any successor securities clearing agency.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, or its Chief Financial Officer, and by its Treasurer, its
Secretary or its Senior Vice President and General Counsel, and delivered to the
Trustee.
"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 hereof is located at 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000.
"corporation" means a corporation, association, company, joint-stock
company or business or statutory trust.
"Covenant Defeasance" has the meaning specified in Section 12.3.
"Defaulted Interest" has the meaning specified in Section 3.6.
"Defeasance" has the meaning specified in Section 12.2.
"Definitive Securities" means physical securities in fully registered
form.
"Definitive Exchange Securities" means Exchange Securities that are
physical securities in fully registered form.
"Depositary" means, with respect to Securities issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for the
Securities, the initial such Depositary to be The Depository Trust Company.
"Euroclear" means Euroclear Bank S.A./N.V., as the operator of the
Euroclear System, or any successor securities clearing agency.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Securities" means the Securities issued in any Registered
Exchange Offer as permitted by Section 3.4(d) hereof.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Fair Value" has the meaning specified in Section 10.9.
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"Global Security" means a Security that evidences all or part of the
Securities, registered in the name of the Depositary or its nominee, and bears
the relevant legend(s) set forth in Section 2.3.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any person means the principal of, premium, if any,
and interest due on indebtedness of such Person, whether outstanding on the date
of this Indenture or thereafter created, incurred or assumed, which is (a)
indebtedness for money borrowed, and (b) any amendments, renewals, extensions,
modifications and refundings of any such indebtedness. For the purposes of this
definition, "indebtedness for money borrowed" means (i) any obligation of, or
any obligation guaranteed by, such Person for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) any obligation of, or any such obligation guaranteed by, such
Person evidenced by bonds, debentures, notes or similar written instruments,
including obligations assumed or incurred in connection with the acquisition of
property, assets or businesses (PROVIDED, HOWEVER, that the deferred purchase
price of any other business or property or assets shall not be considered
Indebtedness if the purchase price thereof is payable in full within 90 days
from the date on which such indebtedness was created), (iii) any obligations of
such Person as lessee under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting principles in the United
States and leases of property or assets made as part of any sale and lease-back
transaction to which such Person is a party; and (iv) any obligation of, or any
such obligation guaranteed by, any Person for the payment of amounts due under a
swap agreement or other similar instrument or agreement or foreign currency
hedge exchange or similar instrument or agreement.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Securities" means the first $75,000,000 aggregate principal
amount of Securities issued under this Indenture on the date hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Securities for use by such Holders
in connection with the Registered Exchange Offer.
"Lien" means any mortgage, deed of trust, pledge, lien, security
interest or other encumbrance (including, without limitation, any conditional
sale or other title retention agreement or lease in the nature thereof, any
filing or agreement to give a lien or file a financing statement as a debtor
under the Uniform Commercial Code or any similar statute other than to
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reflect ownership by a third party of property under a lease which is not in the
nature of a conditional sale or title retention agreement).
"Life Companies" has the meaning specified in Section 10.9.
"Maturity", when used with respect to a Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3) or 5.1(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, or the Chief Financial Officer, and by
the Treasurer, the Secretary or the Senior Vice President and General Counsel of
the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; PROVIDED that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 12.2; and
(iv) Securities which have been paid pursuant to Section
3.5 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the
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Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor. In connection with any request, demand, authorization, direction,
consent or waiver hereunder, all Outstanding Securities will vote and consent
together on all matters as one class and none of the Outstanding Securities will
have the right to vote or consent as a class separate from one another on any
matter.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.5 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Private Exchange Securities" means Exchange Securities issued
pursuant to this Indenture in connection with any Private Exchange (as defined
in the Registration Rights Agreement) effected pursuant to the Registration
Rights Agreement.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of April 12, 2004, among the Company, Xxxxx, Xxxxxxxx &
Xxxxx, Inc. and ABN AMRO Incorporated, as such agreement may be amended,
modified or supplemented from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the April 1 or October 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
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"Regulation S Global Security" has the meaning specified in Section
2.1(b).
"Regulation S Securities" means all Securities offered and sold as
part of its initial distribution to Persons outside the United States in
accordance with Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means
any managing director, any director, any vice president, any assistant vice
president, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Securities" has the meaning specified in
Section 2.1(d).
"Restricted Period" means, with respect to the Global Securities
initially offered and sold in reliance on Regulation S, the period of 40
consecutive days beginning on and including the later of (i) the day that the
underwriter(s), initial purchaser(s) or placement agent(s), if any, for the
offering of such Global Securities advises the Company and the Trustee in
writing is the day on which such Global Securities were first offered to persons
other than distributors (as defined in Regulation S) in reliance on Regulation S
and (ii) the date such Global Securities were issued.
"Restricted Securities" means, collectively, the Rule 144A Global
Security, the Regulation S Global Security and the Restricted Definitive
Securities.
"Restricted Securities Legend" means the legend(s) substantially in
the form of the legend required in accordance with Sections 2.3(a) and 2.3(b) to
be placed upon each Restricted Security.
"Restricted Subsidiary" means a Subsidiary incorporated under the laws
of any state of the United States or of the District of Columbia; PROVIDED that
no such Subsidiary shall be a Restricted Subsidiary if (1) the total assets of
such Subsidiary are less than 10% of the total assets of the Company and its
consolidated Subsidiaries (including such Subsidiary), in each case as set forth
on the most recent fiscal year-end balance sheets of such Subsidiary and the
Company, respectively, and determined in accordance with generally accepted
accounting principles in the United States, or (2) in the judgment of the Board
of Directors, as evidenced by a Board Resolution, such Subsidiary is not
material to the financial condition of the Company and its consolidated
Subsidiaries taken as a whole.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Global Security" has the meaning specified in Section
2.1(c).
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"Rule 144A Information" means such information as is specified
pursuant to paragraph (d)(4) of Rule 144A (or any successor provision thereto),
as such provision (or successor provision) may be amended from time to time.
"Rule 144A Securities" means Securities offered and sold as part of
its initial distribution in transactions exempt from the registration
requirements of the Securities Act, other than pursuant to Regulation S, to
Persons who are "qualified institutional buyers" pursuant to Rule 144A.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture. The Initial Securities and the Exchange Securities, if
any, shall be treated as a single class for all purposes under this Indenture,
and unless the context otherwise requires, all references to the Securities
shall include the Initial Securities and any Exchange Securities.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.4.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.6.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; 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 amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligation" has the meaning specified in Section
12.4.
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"U.S. Person" has the meaning specified in Regulation S.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Unrestricted Definitive Security" means one or more Definitive
Securities that do not bear and are not required to bear the Restricted
Securities Legend.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture.
The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder of a Security;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined in the Trust Indenture Act by reference to another
statute or defined by Commission rule under the Trust Indenture Act have the
meanings so assigned to them.
SECTION 1.3 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the Officers'
Certificate required by Section 10.4) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.4 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.5 ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.1)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 1.6 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Institutional Trust Services, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument, Attention: Chief Financial Officer,
or at any other address previously furnished in writing to the Trustee by
the Company.
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SECTION 1.7 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.8 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.9 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.10 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.11 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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.
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SECTION 1.12 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.13 GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of
New York without regard to
principles of conflicts of laws.
SECTION 1.14 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, PROVIDED that no interest
shall accrue on the payment so deferred for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE II.
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
(a) The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
(b) Except as otherwise provided herein, Regulation S Securities
shall be issued in the form of one or more Global Securities (collectively, the
"Regulation S Global Security") in definitive, fully registered form, without
interest coupons, substantially in the form set forth in Section 2.2, with such
applicable legends as are provided for in Sections 2.2. and 2.3. Such Regulation
S Global Security shall be registered in the name of the Depositary or its
nominee and shall be delivered by the Trustee to the Depositary or pursuant to
the Depositary's
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instructions, duly executed by the Company and authenticated by the Trustee as
hereinafter provided, for credit to the respective accounts of owners of
beneficial interests in such Security. The aggregate principal amount of the
Regulation S Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as hereinafter provided.
(c) Except as otherwise provided herein, Rule 144A Securities
shall be issued in the form of one or more Global Securities (collectively, the
"Rule 144A Global Security") in definitive, fully registered form, without
interest coupons, substantially in the form of Security set forth in Section
2.2, with such applicable legends as are provided for in Sections 2.2 and 2.3.
Such Rule 144A Global Security shall be registered in the name of the Depositary
or its nominee and shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts of owners of beneficial interests in such Security. 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 hereinafter provided.
(d) Except as otherwise provided herein, the Securities offered
and sold to institutions that are "accredited investors" within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D who are not also "qualified
institutional buyers" within the meaning of Rule 144A shall be issued in the
names of their initial beneficial owners and delivered to such Holders in
definitive form, without interest coupons with such applicable legends as are
provided for in Sections 2.2 and 2.3. Such Securities are referred to in this
Indenture as the "Restricted Definitive Securities".
SECTION 2.2 FORM OF SECURITIES.
(a) FORM OF INITIAL SECURITY. The Initial Securities will be
substantially in the form of EXHIBIT A hereto, which is a part of this
Indenture, and all of the provisions of which shall be deemed to be included in
this Indenture.
(b) FORM OF EXCHANGE SECURITY AND PRIVATE EXCHANGE SECURITY. The
Exchange Securities and the Private Exchange Securities will be substantially in
the form of EXHIBIT B hereto, which is a part of this Indenture, and all of the
provisions of which shall be deemed to be included in this Indenture.
SECTION 2.3 FORM OF LEGEND FOR SECURITIES.
Every Security authenticated and delivered hereunder shall bear one or
more of the appropriate legends in substantially the following forms described
below:
(a) If the Security is a Restricted Security or is a Private
Exchange Security that is required to contain a Restricted Securities Legend
pursuant to Section 3.4(d)(2), then insert the following legend:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT
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BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL
INVESTOR (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) BY
SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, IN A MINIMUM
PRINCIPAL AMOUNT OF $100,000 TO AN INSTITUTIONAL ACCREDITED INVESTOR, AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR") WHO CERTIFIES TO THE COMPANY AND THE TRUSTEE THAT IT IS AN
INSTITUTIONAL ACCREDITED INVESTOR AND IS ACQUIRING THE SECURITIES FOR ITS OWN
ACCOUNT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND NOT WITH A VIEW TO ANY RESALE OR DISTRIBUTION THEREOF OTHER
THAN IN ACCORDANCE WITH THE RESTRICTIONS REFERRED TO HEREIN, IN EACH CASE (A)
AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS. SECURITIES OWNED BY AN INITIAL INVESTOR
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND HAS NOT PURCHASED THE SECURITIES
PURSUANT TO REGULATION S MAY NOT BE HELD IN BOOK-ENTRY FORM AND MAY NOT BE
TRANSFERRED WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS."
(b) If the Security is a Regulation S Global Security, then insert
the following legend:
"PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT), THIS SECURITY MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES WITHIN
THE MEANING OF REGULATION S OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S.
PERSON WITHIN THE MEANING OF REGULATION S."
(c) If the Security is a Global Security, then insert the
following legend:
"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 THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE."
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(d) If the Security is a Global Security and The Depository Trust
Company is to be the Depositary therefor, then insert the following legend:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
SECTION 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
DEUTSCHE BANK TRUST
COMPANY AMERICAS,
AS TRUSTEE
By
-----------------------
AUTHORIZED OFFICER
ARTICLE III.
THE SECURITIES
SECTION 3.1 TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $75,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 3.4,
3.5, 9.6, or 11.8 and except that the Company may, if, when and as authorized by
a Board Resolution, issue additional Securities under this Indenture of
substantially the same tenor herein set forth, which additional securities shall
be treated as Securities for all purposes of this Indenture.
The Securities shall be known and designated as the "5.85% Senior
Notes due 2014" of the Company. Their Stated Maturity shall be April 15, 2014,
and they shall bear interest at the rate of 5.85% per annum, from April 12, 2004
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on April 15 and
October 15, commencing October 15, 2004, until the principal thereof is paid or
made available for payment.
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Payment of the principal of, premium, if any, and interest on the
Securities shall be made, subject to surrender of the Security in the case of
payment of principal and premium, if any, at the office or agency of the Company
maintained for that purpose in The City of
New York, by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register, or in such other manner as may be mutually acceptable to the
Company and the Trustee; PROVIDED, HOWEVER, upon written request by any Holder
given to the Trustee not later than 15 days prior to the Stated Maturity of
principal or interest, payment of principal or interest due at the Stated
Maturity may be made, subject to surrender of the Security in the case of
payment of principal, by wire transfer in immediately available funds at such
place and to such account as may be designated by the Person entitled thereto
pursuant to Section 3.7.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall rank PARI PASSU with other existing and future
unsecured senior indebtedness of the Company.
SECTION 3.2 DENOMINATIONS.
Securities that are not Restricted Definitive Securities are issuable
only in fully registered form, without coupons, in denominations of $1,000 and
any integral multiple thereof.
Securities that are Restricted Definitive Securities are issuable only
in registered form without coupons and in denominations of $100,000 and integral
multiples of $1,000 in excess thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, or its Chief Financial
Officer attested by its Secretary, or by its Senior Vice President and General
Counsel. The signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of any
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authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
SECTION 3.4 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office or in any other office or agency
designated pursuant to Section 10.2 being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities or for exchange of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers and exchanges of Securities as herein provided. If and so long as the
Trustee is not the Security Registrar, the Trustee shall have the right to
inspect the Security Register during regular business hours.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 10.2 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 9.6 or 11.8 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 11.4 and ending at the close of business
on the day of such mailing, or (ii) to register the
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transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
The provisions of clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or the
Securities, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such Depositary
(i) has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security and a successor Depositary has not been
appointed by the Company within 60 days of receipt by the Company of such
notification or (ii) has ceased to be a clearing agency registered under
the Exchange Act and a successor Depositary has not been appointed by the
Company within 60 days after the Company became aware of such cessation or
(B) there shall have occurred and be continuing an Event of Default with
respect to such Global Security.
(3) Subject to clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.5, 9.6 or 11.8
or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
(5) None of the Company, the Trustee nor any agent of the Company
or the Trustee will have any responsibility or liability for the accuracy
or completeness of the records relating to or payments made on account of
beneficial ownership interests of a Global Security, for any act or
omissions of a Depositary or transactions between the Depositary and
beneficial owners, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
(b) CERTAIN TRANSFERS AND EXCHANGES GENERALLY. Notwithstanding any
other provisions of this Indenture or the Securities, transfers of a Global
Security, in whole or in part, transfers and exchanges of interests therein of
the kinds described in clauses (3), (4) and (5) below and exchanges of interests
in Global Securities or of other Securities as described in clause (6) below
shall be made only in accordance with this Section 3.4(b). Transfers and
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exchanges subject to this Section 3.4 shall also be subject to the other
provisions of this Indenture that are not inconsistent with this Section 3.4.
(1) LIMITATION ON TRANSFERS OF A GLOBAL SECURITY. Except as
provided in Section 3.4(a), a Global Security may not be transferred, in
whole or in part, to any Person other than the Depositary or a nominee
thereof, and no such transfer to any such other Person may be registered;
PROVIDED that this clause (1) shall not prohibit any transfer of a Security
that is issued in exchange for a Global Security but is not itself a Global
Security. No transfer of a Security to any Person shall be effective under
this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section 3.4(b)(1)
shall prohibit or render ineffective any transfer of a beneficial interest
in a Global Security effected in accordance with the other provisions of
this Section 3.4(b).
(2) RULE 144A GLOBAL SECURITY TO REGULATION S GLOBAL SECURITY. If
the holder of a beneficial interest in the Rule 144A Global Security wishes
at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Regulation S
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.4(b)(2). Upon receipt by
the Trustee, as Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member directing
the Trustee to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Regulation S Global Security in a
principal amount equal to that of the beneficial interest in the Rule 144A
Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member (and, if applicable, the Euroclear or
Clearstream account, as the case may be) to be credited with, and the
account of the Agent Member to be debited for, such beneficial interest and
(C) a certificate in substantially the form set forth in EXHIBIT C given by
or on behalf of the owner of such beneficial interest, the Trustee, as
Security Registrar, shall instruct the Depositary to reduce the principal
amount of the Rule 144A Global Security and to increase the principal
amount of the Regulation S Global Security by the principal amount of the
beneficial interest in the Rule 144A Global Security to be so transferred,
and the Trustee, as Security Registrar, shall make an appropriate
adjustment on its records and shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records
and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Regulation S
Global Security having a principal amount equal to the amount so
transferred.
(3) REGULATION S GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY. If
the holder of a beneficial interest in the Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Rule 144A
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.4(b)(3); provided,
however, that prior to the expiration of the Restricted Period, transfers
of beneficial interests in the Regulation S Global Securities may not be
made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an initial purchaser). Upon receipt by
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the Trustee, as Security Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member directing
the Trustee to credit or cause to be credited to a specified Agent Member's
account a beneficial interest in the Rule 144A Global Security in a
principal amount equal to that of the beneficial interest in the Regulation
S Global Security to be so transferred and (B) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member to be credited with, and the account of the
Agent Member (and, if applicable, the Euroclear or Clearstream account, as
the case may be) to be debited for, such beneficial interest, the Trustee,
as Security Registrar, shall instruct the Depositary to reduce the
principal amount of the Regulation S Global Security and to increase the
principal amount of the Rule 144A Global Security by the principal amount
of the beneficial interest in the Regulation S Global Security to be so
transferred, and the Trustee, as Security Registrar, shall make an
appropriate adjustment on its records and shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its
records and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A
Global Security having a principal amount equal to the amount so
transferred.
(4) EXCHANGES OF GLOBAL SECURITY FOR NON-GLOBAL SECURITY.
Securities that are Global Securities may be exchanged (on transfer or
otherwise) for Securities that are not Global Securities or for beneficial
interests in a Global Security (if any is then Outstanding) only in
accordance with such procedures, which shall be substantially consistent
with the provisions of clauses (1) through (3) above and (5) below
(including the certification requirements intended to insure that transfers
and exchanges of beneficial interests in a Global Security comply with Rule
144A, Rule 144 or Regulation S, as the case may be) and any Applicable
Procedures, as may be from time to time adopted by the Company and the
Trustee.
(5) INTERESTS IN REGULATION S GLOBAL SECURITIES TO BE HELD THROUGH
EUROCLEAR OR CLEARSTREAM. Until the termination of the Restricted Period,
interests in any Regulation S Global Security may be held only through
Agent Members acting for and on behalf of Euroclear and Clearstream.
(c) SECURITIES ACT LEGENDS. Each Restricted Security and Global
Security issued hereunder shall, upon issuance, bear the legends required by
Section 2.2 and Section 2.3 to be applied to such a Security and such required
legends shall not be removed from such Security except as provided in the next
sentence, Section 3.4(a) or Section 3.4(d). The legend required for a Restricted
Security may be removed from a Security if there is delivered to the Company
such satisfactory evidence, which may include an opinion of independent counsel
licensed to practice law in the State of
New York, as may be reasonably required
by the Company that neither such legend nor the restrictions on transfer set
forth therein are required to ensure that transfers of such Security will not
violate the registration requirements of the Securities Act. Upon provision of
such satisfactory evidence, the Trustee, at the direction of the Company, shall
authenticate and deliver in exchange for such Security another Security or
Securities having an equal aggregate principal amount that does not bear such
legend. If such a Restricted Securities Legend required for a Restricted
Security has been removed from a Security as provided above, neither such
Security nor any other Security issued in exchange for
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all or any part of such Security shall bear such legend, unless the Company has
reasonable cause to believe that such other Security is a "restricted security"
within the meaning of Rule 144 and instructs the Trustee to cause a legend to
appear thereon.
(d) TRANSFERS OR EXCHANGES IN CONNECTION WITH A REGISTERED
EXCHANGE OFFER OR REGISTRATION STATEMENT.
(1) Notwithstanding anything else in this Indenture to the
contrary, upon the consummation of a Registered Exchange Offer as
contemplated by the Exchange Offer Registration Statement with respect to
the Initial Securities pursuant to which Holders of such Initial Securities
are offered Exchange Securities in exchange for their Initial Securities,
Definitive Securities with the Restricted Securities Legend will be
available to Holders that do not exchange their Initial Securities and
Definitive Exchange Securities will be available to Holders that exchange
such Initial Securities in such Registered Exchange Offer; provided,
however, that in connection with any such exchange, the Holder of such
Initial Securities that are to be exchanged certifies in the applicable
Letter of Transmittal that it is not (a) a Broker-Dealer, (b) a Person
participating in the distribution of the Exchange Securities or (c) a
Person who is an affiliate (as defined in Rule 144) of the Company.
(2) Notwithstanding anything else in this Indenture to the
contrary, upon the consummation of a Private Exchange with respect to
Initial Securities in accordance with the provisions of the Registration
Rights Agreement, Private Exchange Securities will be exchanged with such
Initial Securities, provided that the Private Exchange Securities will (i)
be in the same form (either a Global Security or a Definitive Security) as
such Initial Security, and (ii) will contain the same Restricted Securities
Legends, if any, contained in such Initial Security. In addition, all
requirements pertaining to such Securities that Securities issued to
certain holders be issued in the form of a Global Security will remain in
effect.
(3) Notwithstanding anything else in this Indenture to the
contrary, after a transfer of any Securities or Private Exchange Securities
pursuant to the Shelf Registration Statement in accordance with the
provisions of the Registration Rights Agreement, with respect to such
Securities or Private Exchange Securities, as the case may be, (i) all
requirements pertaining to the Restricted Securities Legend or other
legends on such Security or such Private Exchange Security will cease to
apply, (ii) the requirements requiring that any such Security or such
Private Exchange Security issued to certain Holders be issued in the form
of a Global Security will cease to apply and (iii) an Unrestricted
Definitive Security or Private Exchange Security without the Restricted
Securities Legend or other legends will be available to the transferee of
the Holder of such Securities or Private Exchange Securities or upon
receipt of directions to transfer such Holder's interest in the Global
Security, as applicable.
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SECTION 3.5 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.6 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest and shall
be made by mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.7 of the Indenture,
to the address of such Person as it appears on the Security Register, or in such
other manner as may be mutually acceptable to the Company and the Trustee;
PROVIDED, HOWEVER, upon written request by any Holder given to the Trustee not
later than 15 days prior to the Interest Payment Date, payment of interest may
be made by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto pursuant to
said Section 3.7.
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Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.7 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of
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principal of, premium, if any, and (subject to Section 3.6) interest on such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 3.8 CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.9 COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.5 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(a) have become due and payable, or
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(b) will become due and payable at their Stated Maturity within
one year, or
(c) 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,
(d) and the Company, in the case of (a), (b) or (c) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
REMEDIES
SECTION 5.1 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 of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default 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
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(2) default in the payment of the principal of and premium, if
any, on any Security at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced, any indebtedness for money borrowed by the
Company in excess of $25 million principal amount, whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay any portion of the principal of such
indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto or shall have resulted in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities a written notice specifying
such default and requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; PROVIDED,
HOWEVER, that, subject to the provisions of Sections 6.1 and 6.2, the
Trustee shall not be deemed to have knowledge of such default unless either
(A) a Responsible Officer of the Trustee assigned to its Corporate Trust
Office shall have actual knowledge of such default or (B) the Trustee shall
have received written notice thereof from the Company, from any Holder,
from the holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 60
consecutive days; or
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(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal of all the Securities to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal shall
become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
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(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of or premium,
if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, premium, if any, and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and premium, if any, and on any overdue interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization,
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arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium, if any, on and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any,
and interest, respectively.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
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(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
3.6) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.5, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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SECTION 5.12 CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction and
(3) the Trustee shall have the right to decline to follow any such
direction if the Trustee shall have reasonable grounds for believing that
such direction would involve the Trustee in personal liability for which
the security or indemnity provided under Article Six would not be
sufficient.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of, premium of, if any, or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
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SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of its rights and powers under this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs as provided by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2 NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder
within 90 days of the occurrence thereof or within such other time period as may
be specified by the Trust Indenture Act, in each case to the extent and in the
manner provided for in the Trust Indenture Act. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
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(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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SECTION 6.6 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents, consultants and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities. The
obligations of the Company under this Section 6.7 shall survive payment in full
of the Securities, the resignation or removal of the Trustee and the termination
of this Indenture.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time
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the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six
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months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.7. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
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SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 3.5, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
As Trustee
By ,
As Authenticating Agent
By ,
Authorized Officer
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
If the Trustee is not the Securities Registrar, the Company will
furnish to the Trustee at least seven 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 the Holders of Securities and the Company shall otherwise
comply with Section 312(a) of the Trust Indenture Act.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar and the Trustee shall otherwise comply with
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Section 312(a) of the Trust Indenture Act. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.3 REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 3.13(a) of the Trust Indenture Act, the Trustee
shall, within 60 days after each January 12 following the date of this
Indenture, deliver to Holders a brief report, dated as of such January 12, which
complies with the provisions of such Section 3.13(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.4 REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or sell, convey, transfer or lease all or substantially all of its properties
and assets as an entirety to any Person, and the Company shall not permit any
Person to consolidate with or merge into the Company, unless:
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(1) (a) the Company is the continuing corporation in any such
consolidation or merger, or (b) in case the Company shall consolidate with
or merge into another Person or sell, convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or
the Person which acquires or leases the properties and assets of the
Company substantially as an entirety shall be a corporation, partnership,
limited liability company or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of, premium, if any, and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(3) if, as a result of any such consolidation or merger or such
sale, conveyance, transfer or lease, the Company's properties and assets
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such steps
as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.1, 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.
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ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, which shall not be inconsistent with the provisions
of this Indenture; PROVIDED that such action pursuant to this clause (4)
shall not adversely affect the interests of the Holders in any material
respect.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the place of payment
where, or the coin or currency in which, any Security or interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain
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provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 1.12, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE X.
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of, premium, if
any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of
New York an office or agency
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. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the 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
City of
New York for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 10.3 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, 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, 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,
prior to each due date of the principal of, premium, if any, or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the
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provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities) in the making of any payment in respect of the Securities,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent as such.
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, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such 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 published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of
New
York, 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 10.4 STATEMENT BY OFFICERS AS TO DEFAULT.
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, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 10.5 EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 10.6 MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 10.7 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 10.8 NEGATIVE PLEDGE.
As long as Securities are Outstanding, the Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create,
assume, incur or permit to exist any Indebtedness that is secured by any Lien on
the capital stock of a Restricted Subsidiary unless the Securities are secured
equally and ratably with (or prior to) such Indebtedness for at least the time
period such Indebtedness is so secured.
SECTION 10.9 NO DISPOSITION.
As long as Securities are Outstanding, the Company shall not, and
shall not permit Farm Bureau Life Insurance Company and EquiTrust Life Insurance
Company (collectively, the "Life Companies"), to issue, sell, transfer or
otherwise dispose of any shares of capital stock of the Life Companies or any
securities convertible into or exercisable or exchangeable for shares of capital
stock of the Life Companies, or warrants, rights or options to subscribe for or
purchase shares of capital stock of the Life Companies, unless (i) such
issuance, sale, transfer or other disposition is for at least fair value (as
determined by the Board of Directors acting in good faith, such action to be
evidenced by a Board Resolution) ("Fair Value") and (ii) the Company will own,
directly or indirectly, at least 80% of the capital stock of the Life Companies
after giving effect to such transaction. In addition, the Company shall not
cause or permit either of the Life Companies to:
(1) merge or consolidate with or into any corporation or other
Person, unless such merger or consolidation is for at least Fair Value and
(i) the surviving corporation or
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Person is the Company, or (ii) at least 80% of the surviving corporation's
issued and outstanding voting stock is owned, directly or indirectly, by
the Company; or
(2) lease, sell, assign or transfer all or substantially all of
its properties and assets to any corporation or other Person (other than
the Company), unless such lease, sale, assignment or transfer is for at
least Fair Value and at least 80% of the issued and outstanding voting
stock of that corporation or other Person is owned, directly or indirectly,
by the Company following such lease, sale or assignment.
Notwithstanding the foregoing, the Company may merge or consolidate any of its
other Subsidiaries (including its other insurance company Subsidiaries) into or
with another of its wholly-owned Subsidiaries and the Company may sell, transfer
or otherwise dispose of its business in accordance with Section 8.1. In
addition, this Section 10.9 shall not prohibit any such issuance or disposition
of capital stock or other securities either (i) to the Company or the Life
Companies in accordance with applicable law or (ii) if required by law or any
regulation or order of any governmental or insurance regulatory authority.
SECTION 10.10 RULE 144A AND OTHER INFORMATION.
(a) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, upon the request of a Holder of a Security or a
beneficial owner of an interest in a Global Security, the Company shall promptly
furnish or cause to be furnished Rule 144A Information to such Holder or
beneficial owner, or to a prospective purchaser of such Security or a beneficial
interest in a Global Security designated by such Holder or beneficial owner of
such interest, in order to permit compliance by such Holder or beneficial owner
with Rule 144A under the Securities Act in connection with the resale of such
Security by such Holder or beneficial owner.
(b) The Company shall deliver to the Trustee, who shall deliver to
each Holder without charge, (i) as soon as practicable after the end of each
fiscal year, an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and (ii) during any
period in which the Company is subject to Section 13 or 15(d) of the Exchange
Act, the annual reports, quarterly reports and current reports which the Company
is required to file with the Securities and Exchange Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
SECTION 10.11 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.8 to 10.10, inclusive, if before
the time for such compliance the Holders of at least 66 2/3% 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 covenant or
condition, but no such waiver shall extend to or affect such covenant 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 covenant or condition shall remain in full force and
effect.
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SECTION 10.12 ABILITY OF THE COMPANY TO HOLD SECURITIES.
The Company shall be permitted to hold Securities or beneficial
interests in the Securities for its own account, subject to the provisions of
this Indenture.
ARTICLE XI.
REDEMPTION OF SECURITIES
SECTION 11.1 RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time, at the Redemption Price
specified in the form of Security hereinbefore set forth, together with accrued
interest to the Redemption Date.
SECTION 11.2 APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 11.3 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 11.1 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed.
SECTION 11.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 11.5 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the manner of calculating the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed, and
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.6 DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date. Promptly after the calculation of the
Redemption Price, the Company will give the Trustee and the Paying Agent notice
thereof.
SECTION 11.7 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.6.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 11.8 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 10.2 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII.
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have Section 12.2
or Section 12.3 applied to the Securities, as the case may be, upon compliance
with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution.
SECTION 12.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have this
Section applied to the Securities, the Company shall be deemed to have been
discharged from its obligations with respect to the Securities as provided in
this Section on and after the date the conditions set forth in Section 12.4 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Securities and to have satisfied all its other
obligations under the Securities and this Indenture (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of the Securities to receive,
solely from the trust fund described in Section 12.4 and as more fully set forth
in such Section, payments in respect of the principal of, premium, if any, and
interest on the Securities when payments are due, (2) the Company's obligations
with respect to the Securities under Sections 3.4, 3.5, 10.2 and 10.3, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to the Securities
notwithstanding the prior exercise of its option (if any) to have Section 12.3
applied to the Securities.
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SECTION 12.3 COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this
Section applied to the Securities, (1) the Company shall be released from its
obligations under Section 8.1(3), Sections 10.6 through 10.10, inclusive, and
any covenants provided pursuant to Section 9.1(2) for the benefit of the Holders
of the Securities, and (2) the occurrence of any event specified in Sections
5.1(3) (with respect to any of Section 8.1(3), Sections 10.6 through 10.10,
inclusive, and any such covenants provided pursuant to Section 9.1(2)), shall be
deemed not to be or result in an Event of Default, in each case with respect to
the Securities as provided in this Section on and after the date the conditions
set forth in Section 12.4 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to the Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section (to the extent so specified in the case of Section 5.1(3)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities shall be unaffected thereby.
SECTION 12.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section
12.2 or Section 12.3 to the Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for the benefit of, and dedicated solely to, the Holders of the
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and interest and any other amounts due on the Securities on the
respective Stated Maturities or on a Redemption Date, in accordance with
the terms of this Indenture and the Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary
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receipt, or with respect to any specific payment of principal of or
interest on any U.S. Government Obligation which is so specified and held,
PROVIDED that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 12.2 apply to the
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this instrument, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Securities will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to the
Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 12.3 apply to the
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to the Securities and will
be subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities shall have
occurred and be continuing at the time of such deposit or, with regard to
any such event specified in Sections 5.1(5) and (6), 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).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming this Indenture were qualified under the Trust
Indenture Act and all Securities were in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the
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Investment Company Act unless such trust shall be registered under such Act
or exempt from registration thereunder.
(9) If the Securities are to be redeemed prior to Stated Maturity,
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made.
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 12.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 12.6, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 12.4 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of the
Securities, of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 12.4 with
respect to the Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to the Securities.
SECTION 12.6 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to the Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and the Securities from which the Company has been discharged or
released pursuant to Section 12.2 or 12.3 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to the
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 12.5 with respect to the Securities
in accordance with this Article; PROVIDED, HOWEVER, that if the Company
-53-
makes any payment of principal of, premium, if any, or interest on the
Securities following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of the Securities to receive
such payment from the money so held in trust.
SECTION 12.7 QUALIFYING TRUSTEE.
Any trustee appointed pursuant to Section 12.4 for the purpose of
holding trust funds deposited pursuant to that Section shall be appointed under
an agreement in form acceptable to the Trustee and shall provide to the Trustee
a certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein
to the related Defeasance or Covenant Defeasance have been complied with. In no
event shall the Trustee be liable for any acts or omissions of said trustee.
-----------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-54-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
FBL Financial Group, Inc.
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer and
Chief Administrative Officer
Deutsche Bank Trust Company Americas
By: /s/
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
-55-
EXHIBIT A
FORM OF INITIAL SECURITY
[IF THE SECURITY IS A RESTRICTED SECURITY, INSERT THE APPROPRIATE
LEGEND(S) REQUIRED BY SECTION 2.3 OF THE INDENTURE.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
FBL Financial Group, Inc.
5.85% Senior Note due 2014
No. __________ $________
FBL Financial Group, Inc., a corporation duly organized and existing
under the laws of the State of Iowa (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _____________________ Dollars [IF THE SECURITY IS
A GLOBAL SECURITY, THEN INSERT - or such other principal amount as shall be set
forth in the Schedule of Increases or Decreases in Global Security attached
hereto] on April 15, 2014, and to pay interest thereon from April 12, 2004 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on April 15 and October 15 in each year,
commencing October 15, 2004, at the rate of 5.85% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months), until the principal
hereof is paid or made available for payment; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs
with respect to this Security, additional interest will accrue on this Security
at a rate of 0.5% per annum from and including the date on which any such
Registration Default shall occur, until but excluding the date on which all
Registration Defaults have been cured. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the April 1 or October 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture. Payment in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts of the principal of,
premium, if any, and interest on this Security will be made, subject to
surrender of this Security in the case of payment of principal and premium, if
any, at the office or agency of the Company maintained for that
Exhibit A-1
purpose in The City of
New York, by mailing a check for such principal, premium
or interest payable to or upon the written order of the Person entitled thereto
pursuant to Section 3.6 of such Indenture, to the address of such Person as it
appears on the Security Register, or in such other manner as may be mutually
acceptable to the Company and the Trustee; PROVIDED, HOWEVER, upon written
request by any Holder given to the Trustee not later than 15 days prior to the
Stated Maturity of principal or interest, payment of principal or interest due
at the Stated Maturity may be made, subject to surrender of this Security in the
case of payment of principal, by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto pursuant to said Section 3.6.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
FBL Financial Group, Inc.
By
----------------------------
Attest:
By
------------------------
(REVERSE OF INITIAL SECURITY)
This Security is one of a duly authorized issue of Securities of the
Company designated as its 5.85% Senior Notes due 2014 (herein called the
"Securities"), limited in aggregate principal amount to $75,000,000, issued and
to be issued under an Indenture, dated as of April 12, 2004 (herein called the
"Indenture"), between the Company and Deutsche Bank Trust Company Americas, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
this Security is subject and reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
Exhibit A-2
This Security may be redeemed by the Company in whole or in part, at
its option, at any time and from time to time at a Redemption Price equal to the
greater of (A) 100% of the principal amount of the Securities to be redeemed or
(B) as determined by an Independent Investment Banker, the sum of the present
values of the Remaining Scheduled Payments discounted to the Redemption Date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 25 basis points, together with, in each case, accrued
interest on the principal amount of the Securities to be redeemed, if any, to
the Redemption Date, and any other amounts due with respect to the Securities to
be redeemed. In connection with such optional redemption the following defined
terms apply:
"Comparable Treasury Issue" means the United States Treasury security
or securities selected by the Independent Investment Banker as having an actual
or interpolated (on a straight-line basis) 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 such Securities.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the interest rates for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding that Redemption Date, as set forth in the daily
statistical release designated H.15 (519) (or any successor release) published
by the Federal Reserve Bank of New York or (ii) if such release (or any
successor release) is not published or does not contain such interest rates on
such Business Day, (A) the average of the Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Independent Investment Banker for the
Securities 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 Company.
"Reference Treasury Dealer" means Xxxxx, Xxxxxxxx & Xxxxx, Inc. or any
of its affiliates that are primary U.S. government securities dealers, and their
respective successors and three other nationally recognized investment banking
firms that are Primary Treasury Dealers specified from time to time by the
Company; provided, however, that if any of the foregoing or their affiliates
shall cease to be a primary U.S. government securities dealer in The City of New
York (a "Primary Treasury Dealer"), the Company will substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, 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 Independent Investment Banker by such
Reference Treasury Dealer at 3:30 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
Exhibit A-3
"Remaining Scheduled Payments" means, with respect to each Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related Redemption Date but for such
redemption. If such Redemption Date is not an Interest Payment Date with respect
to such Security, the amount of the next succeeding scheduled interest payment
on such Security will be reduced by the amount of interest accrued on such
Security to such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the third Business Day preceding that Redemption Date) 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
that Redemption Date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to the Holders of the Securities to be
redeemed. On and after any Redemption Date, interest will cease to accrue on the
Securities or any portion thereof called for redemption. On or before any
Redemption Date, the Company shall deposit with a Paying Agent (or the Trustee)
money sufficient to pay the Redemption Price of and accrued interest on the
Securities to be redeemed on such date. If less than all of the Securities are
to be redeemed, the Securities to be redeemed shall be selected by the Trustee
by such method as the Trustee shall deem fair and appropriate.
The Redemption Price shall be calculated by the Independent Investment
Banker and the Company, the Trustee and any Paying Agent for the Securities
shall be entitled to rely on, and the Company, the Trustee, the Paying Agent and
the Holders shall be bound by, such calculation.
The Company shall not be obligated to redeem or purchase the
Securities pursuant to any sinking fund or analogous provisions or at the option
of the Holder thereof.
In the event of redemption of this Security in part only, a new
Security or Securities and of like tenor for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
At any time when the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), upon the
request of a Holder of a Security or of a beneficial owner of an interest in a
Global Security, the Company will promptly furnish or cause to be furnished Rule
144A Information (as defined below) to such Holder or beneficial owner, or to a
prospective purchaser of a Security or a beneficial interest in a Global
Security designated by such Holder or beneficial owner of such interest in order
to permit compliance by such Holder or beneficial owner with Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act") in connection with the
resale of such Security by such Holder or beneficial owner. "Rule 144A
Information" shall be such information as is specified
Exhibit A-4
pursuant to paragraph (d)(4) of Rule 144A (or any successor provision thereto),
as such provision (or successor provision) may be amended from time to time.
The Company shall deliver to the Trustee, who shall deliver to each
Holder without charge, (i) as soon as practicable after the end of each fiscal
year, an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and (ii) during any
period in which the Company is subject to Section 13 or 15(d) of the Exchange
Act, the annual reports, quarterly reports and current reports which the Company
is required to file with the Securities and Exchange Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
This Security shall rank PARI PASSU with other existing and future
unsecured senior indebtedness of the Company.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of 66
2/3% in aggregate principal amount of the Securities at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Exhibit A-5
[IF THE SECURITY IS NOT A RESTRICTED DEFINITIVE SECURITY, THEN INSERT:
The Securities are issuable only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof.]
[IF THE SECURITY IS A RESTRICTED DEFINITIVE SECURITY, THEN INSERT: The
Securities are issuable only in fully registered form, without coupons, and in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.]
As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer
or exchange, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
laws.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $_________.
The following increases or decreases in this Global Security have been made:
AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN AMOUNT OF INCREASE OF THIS GLOBAL SIGNATURE OF
PRINCIPAL AMOUNT IN PRINCIPAL SECURITY FOLLOWING AUTHORIZED OFFICER
OF THIS GLOBAL AMOUNT OF THIS SUCH DECREASE OR OR SIGNATORY OF
DATE OF EXCHANGE SECURITY GLOBAL SECURITY INCREASE TRUSTEE
----------------- ---------------- ------------------ ------------------ ------------------
]
Exhibit A-6
EXHIBIT B
Form of Exchange Security or Private Exchange Security
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT THE APPROPRIATE
LEGEND REQUIRED BY SECTION 2.3 OF THE INDENTURE.]
[IF THE SECURITY IS A PRIVATE EXCHANGE SECURITY AND REQUIRED TO
CONTAIN THE RESTRICTED SECURITIES LEGEND PURSUANT TO SECTION 3.4(d)(2) OF THE
INDENTURE, THEN INSERT THE APPROPRIATE LEGEND REQUIRED BY SECTION 2.3 OF THE
INDENTURE.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
FBL Financial Group, Inc.
5.85% Senior Exchange Note due 2014
No. __________ $________
FBL Financial Group, Inc., a corporation duly organized and existing
under the laws of the State of Iowa (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _____________________ Dollars [IF THE SECURITY IS
A GLOBAL SECURITY, THEN INSERT - or such other principal amount as shall be set
forth in the Schedule of Increases or Decreases in Global Security attached
hereto] on April 15, 2014, and to pay interest thereon from April 12, 2004 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on April 15 and October 15 in each year,
commencing October 15, 2004, at the rate of 5.85% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months), until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the April 1 or
October 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. Payment
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts of the principal
of, premium, if any, and interest on this Security will be made, subject to
surrender of this Security in the case of payment of principal and premium, if
any, at the office or agency of the Company maintained for that
Exhibit B-1
purpose in The City of New York, by mailing a check for such principal, premium
or interest payable to or upon the written order of the Person entitled thereto
pursuant to Section 3.6 of such Indenture, to the address of such Person as it
appears on the Security Register, or in such other manner as may be mutually
acceptable to the Company and the Trustee; PROVIDED, HOWEVER, upon written
request by any Holder given to the Trustee not later than 15 days prior to the
Stated Maturity of principal or interest, payment of principal or interest due
at the Stated Maturity may be made, subject to surrender of this Security in the
case of payment of principal, by wire transfer in immediately available funds at
such place and to such account as may be designated by the Person entitled
thereto pursuant to said Section 3.6.
[INSERT ANY SPECIAL NOTICE PROVISIONS REQUIRED BY ANY STOCK
EXCHANGE(S) UPON WHICH THE SECURITY IS LISTED.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
FBL Financial Group, Inc.
By
-----------------------------
Attest:
By
------------------------
(FORM OF REVERSE)
This Security is one of a duly authorized issue of Securities of the
Company designated as its 5.85% Senior Exchange Notes due 2014 (herein called
the "Securities"), limited in aggregate principal amount to $75,000,000, issued
and to be issued under an Indenture, dated as of April 12, 2004 (herein called
the "Indenture"), between the Company and Deutsche Bank Trust Company Americas,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto this Security is subject and reference is hereby made for a statement of
the respective
Exhibit B-2
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
This Security may be redeemed by the Company in whole or in part, at
its option, at any time and from time to time at a Redemption Price equal to the
greater of (A) 100% of the principal amount of the Securities to be redeemed or
(B) as determined by an Independent Investment Banker, the sum of the present
values of the Remaining Scheduled Payments discounted to the Redemption Date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 25 basis points, together with, in each case, accrued
interest on the principal amount of the Securities to be redeemed, if any, to
the Redemption Date, and any other amounts due with respect to the Securities to
be redeemed. In connection with such optional redemption the following defined
terms apply:
"Comparable Treasury Issue" means the United States Treasury security
or securities selected by the Independent Investment Banker as having an actual
or interpolated (on a straight-line basis) 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 such Securities.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the interest rates for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding that Redemption Date, as set forth in the daily
statistical release designated H.15 (519) (or any successor release) published
by the Federal Reserve Bank of New York or (ii) if such release (or any
successor release) is not published or does not contain such interest rates on
such Business Day, (A) the average of the Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Independent Investment Banker for the
Securities 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 Company.
"Reference Treasury Dealer" means Xxxxx, Xxxxxxxx & Xxxxx, Inc. or any
of its affiliates that are primary U.S. government securities dealers, and their
respective successors and three other nationally recognized investment banking
firms that are Primary Treasury Dealers specified from time to time by the
Company; provided, however, that if any of the foregoing or their affiliates
shall cease to be a primary U.S. government securities dealer in The City of New
York (a "Primary Treasury Dealer"), the Company will substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, 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 Independent
Exhibit B-3
Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
"Remaining Scheduled Payments" means, with respect to each Security to
be redeemed, the remaining scheduled payments of principal of and interest on
such Security that would be due after the related Redemption Date but for such
redemption. If such Redemption Date is not an Interest Payment Date with respect
to such Security, the amount of the next succeeding scheduled interest payment
on such Security will be reduced by the amount of interest accrued on such
Security to such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the third Business Day preceding that Redemption Date) 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
that Redemption Date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to the Holders of the Securities to be
redeemed. On and after any Redemption Date, interest will cease to accrue on the
Securities or any portion thereof called for redemption. On or before any
Redemption Date, the Company shall deposit with a Paying Agent (or the Trustee)
money sufficient to pay the Redemption Price of and accrued interest on the
Securities to be redeemed on such date. If less than all of the Securities are
to be redeemed, the Securities to be redeemed shall be selected by the Trustee
by such method as the Trustee shall deem fair and appropriate.
The Redemption Price shall be calculated by the Independent Investment
Banker and the Company, the Trustee and any Paying Agent for the Securities
shall be entitled to rely on, and the Company, the Trustee, the Paying Agent and
the Holders shall be bound by, such calculation.
The Company shall not be obligated to redeem or purchase the
Securities pursuant to any sinking fund or analogous provisions or at the option
of the Holder thereof.
In the event of redemption of this Security in part only, a new
Security or Securities and of like tenor for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
At any time when the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), upon the
request of a Holder of a Security or of a beneficial owner of an interest in a
Global Security, the Company will promptly furnish or cause to be furnished Rule
144A Information (as defined below) to such Holder or beneficial owner, or to a
prospective purchaser of a Security or a beneficial interest in a Global
Security designated by such Holder or beneficial owner of such interest in order
to permit compliance by such Holder or beneficial owner with Rule 144A under the
Securities Act
Exhibit B-4
of 1933, as amended (the "Securities Act") in connection with the resale of such
Security by such Holder or beneficial owner. "Rule 144A Information" shall be
such information as is specified pursuant to paragraph (d)(4) of Rule 144A (or
any successor provision thereto), as such provision (or successor provision) may
be amended from time to time.
The Company shall deliver to the Trustee, who shall deliver to each
Holder without charge, (i) as soon as practicable after the end of each fiscal
year, an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and (ii) during any
period in which the Company is subject to Section 13 or 15(d) of the Exchange
Act, the annual reports, quarterly reports and current reports which the Company
is required to file with the Securities and Exchange Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
This Security shall rank PARI PASSU with other existing and future
unsecured senior indebtedness of the Company.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of 66
2/3% in aggregate principal amount of the Securities at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Exhibit B-5
[IF THE SECURITY IS OTHER THAN A PRIVATE EXCHANGE SECURITY THAT IS A
RESTRICTED DEFINITIVE SECURITY, THEN INSERT: The Securities are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof.]
[IF THE SECURITY IS A PRIVATE EXCHANGE SECURITY THAT IS A RESTRICTED
DEFINITIVE SECURITY, THEN INSERT: The Securities are issuable only in registered
form without coupons and in denominations of $100,000 and integral multiples of
$1,000 in excess thereof.]
As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer
or exchange, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
laws.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $_________.
The following increases or decreases in this Global Security have been made:
AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN AMOUNT OF INCREASE OF THIS GLOBAL SIGNATURE OF
PRINCIPAL AMOUNT IN PRINCIPAL SECURITY FOLLOWING AUTHORIZED OFFICER
OF THIS GLOBAL AMOUNT OF THIS SUCH DECREASE OR OR SIGNATORY OF
DATE OF EXCHANGE SECURITY GLOBAL SECURITY INCREASE TRUSTEE
----------------- ---------------- ------------------ ------------------ ------------------
]
Exhibit B-6
EXHIBIT C
FORM OF TRANSFER CERTIFICATE:
RULE 144A GLOBAL SECURITY TO REGULATION S
GLOBAL SECURITY
(For transfers pursuant to Section 3.4(b)(2)
of the Indenture)
Deutsche Bank Trust Company Americas, as Trustee
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxx, MS: NYC60-2710
Re: FBL Financial Group, Inc.
5.85% Senior Notes due 2014 (the "Securities")
Reference is hereby made to the Indenture, dated as of April 12, 2004 (the
"Indenture"), between FBL Financial Group, Inc. (the "Company") and Deutsche
Bank Trust Company Americas, as Trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in Regulation S or the Indenture,
as the case may be.
This certificate relates to U.S. $_____________ aggregate principal amount
of Securities (the "Specified Securities"), which are evidenced by the Rule 144A
Global Security (CUSIP No. _________) and held with the Depositary in the name
of [insert name of transferor] (the "Transferor").
The Transferor 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".
The Owner has requested a transfer of the Specified Securities to a person
(the "Transferee") who will take delivery thereof in the form of an equal
aggregate principal amount of Securities evidenced by the Regulation S Global
Security (CUSIP No. _____________). In connection with such request and in
respect of such Specified Securities, the Owner hereby certifies that such
transfer is being effected in accordance with Rule 904, Rule 903 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 follows:
(1) RULE 904 TRANSFERS. If the transfer is being effected in
accordance with Rule 904 of Regulation S:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to
a person in the United States;
Exhibit C-1
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the United
States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed
in, on or through the facilities of the Eurobond
market, as regulated by the International Securities
Market Association, or another designated offshore
securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has
been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate thereof in
contravention of the requirements of Rule 904(a) of Regulation S;
(E) if the Owner is a dealer in securities or has received
a selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(b)(1) of
Regulation S have been satisfied; and
(F) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(2) RULE 903 TRANSFERS. If the transfer is being effected in
accordance with Rule 903 of Regulation S:
(A) the Owner is a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to
a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the
United States or the Owner and any person
acting on its behalf reasonably believed that
the Transferee was outside the United States,
or
(ii) the transaction is being executed in,
on or through a physical trading floor of an
established foreign securities exchange that
is located outside the United States;
(D) no directed selling efforts have been made in the
United States by
Exhibit C-2
or on behalf of the Owner or any affiliate thereof in contravention of
the requirements of Rule 903 of Regulation S; and
(E) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(3) RULE 144 TRANSFERS. If the transfer is being effected pursuant
to Rule 144, the transfer is occurring after [insert date that is two years
after the date the Securities were issued] and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company.
(4) TRANSFERS PRIOR TO THE EXPIRATION OF THE DISTRIBUTION
COMPLIANCE PERIOD. If the transfer is being effected prior to the
expiration of the 40-day Distribution Compliance Period (as defined in
Regulation S), interests in the Specified Security transferred to a
Regulation S Global Security may be held only through Agent Members acting
for and on behalf of Euroclear and Clearstream.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceeding. This certificate
and the statements contained herein are made for your benefit and the benefit of
the Company and the underwriters or initial purchasers, if any, of the initial
offering of such Securities being transferred.
Dated:
--------------------
(Print the name of the Transferor, as
such term is defined in the second
paragraph of this certificate.)
By:
----------------------------------
Name:
Title:
(If the Transferor is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Transferor must be stated.)
cc: FBL Financial Group, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, Xxxx 00000
Exhibit C-3
