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Exhibit 4(b)
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DELPHI FINANCIAL GROUP, INC.
to
WILMINGTON TRUST COMPANY
Trustee
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SUBORDINATED INDENTURE
Dated as of March 1, 1997
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DELPHI FINANCIAL GROUP, INC.
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Company Reform Act of 1990, are a part of and govern the Indenture whether or
not physically contained therein) and the Subordinated Indenture, dated as of
March __, 1997.
Company Indenture Indenture
Act Section Section
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ss. 310 (a) (1), (2) and (5)...............................................6.8
(a) (3)............................................................Not Applicable
(a) (4)............................................................Not Applicable
(b)................................................................1.5, 1.6, 6.8,
6.9
(c)................................................................Not Applicable
ss.311 (a)................................................................6.13(a)
(b)................................................................6.13(b)
(b) (2)............................................................7.3(a) (2)
ss.312 (a)................................................................7.1
(b)................................................................7.2
(c)................................................................7.2
ss.313 (a)................................................................7.3
(b)................................................................7.3
(c)................................................................1.5, 1.6
(d)................................................................7.3
ss.314 (a) (1), (2), (3) and .............................................1.5, 1.6, 7.4
(b)................................................................Not Applicable
(c) (1)............................................................1.2
(c) (2)............................................................1.2
(c) (3)............................................................Not Applicable
(d)................................................................Not Applicable
(e)................................................................1.3
(f)................................................................Not Applicable
ss.315 (a)................................................................6.1(b)
(b)................................................................1.5, 1.6, 6.2
(c)................................................................6.1(a)
(d)................................................................6.1(c)
(d) (1)............................................................6.1(c)
(d) (2)............................................................6.1(c)
(d) (3)............................................................6.1(c)
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Company Indenture Indenture
Act Section Section
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(e).....................................................5.14
ss.316 (a).....................................................3.16
(a) (1) (A).............................................5.13
(a) (1) (B).............................................5.14
(a) (2).................................................Not Applicable
(b).....................................................5.8
(c).....................................................1.4(f)
ss.317 (a) (1).................................................5.3
(a) (2).................................................5.4
(b).....................................................10.3
ss.318 (a).....................................................1.7
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Subordinated Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................ 1
SECTION 1.1. Definitions......................................................... 1
SECTION 1.2. Certificate and Opinion as to Conditions Precedent.................. 10
SECTION 1.3. Statements Required in Certificate or Opinion....................... 10
SECTION 1.4. Forms of Documents Delivered to Trustee............................. 10
SECTION 1.5. Acts of Holders..................................................... 11
SECTION 1.6. Notices............................................................. 13
SECTION 1.7. Conflict with Trust Indenture Act................................... 13
SECTION 1.8. Effect of Headings and Table of Contents............................ 13
SECTION 1.9. Successors and Assigns.............................................. 14
SECTION 1.10. Separability Clause................................................ 14
SECTION 1.11 Benefits of Indenture............................................... 14
SECTION 1.12. Governing Law...................................................... 14
SECTION 1.13. Non-Business Days.................................................. 14
ARTICLE II
SECURITY FORMS .................................... 15
SECTION 2.1. Forms Generally..................................................... 15
SECTION 2.2. Form of Face of Security............................................ 15
SECTION 2.3. Form of Reverse of Security......................................... 18
SECTION 2.4. Additional Provisions Required in Global Security................... 21
SECTION 2.5. Form of Trustee's Certificate of Authentication..................... 21
ARTICLE III
THE SECURITIES..................................... 23
SECTION 3.1. Title and Terms..................................................... 23
SECTION 3.2. Denominations....................................................... 25
SECTION 3.3. Execution, Authentication, Delivery and Dating...................... 25
SECTION 3.4. Temporary Securities................................................ 27
SECTION 3.5. Registration, Transfer and Exchange................................. 27
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.................... 29
SECTION 3.7. Payment of Interest; Interest Rights Preserved...................... 30
SECTION 3.8. Persons Deemed Owners............................................... 31
SECTION 3.9. Cancellation........................................................ 32
SECTION 3.10. Computation of Interest............................................ 32
SECTION 3.11. Deferrals of Interest Payment Dates................................ 32
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SECTION 3.12. Right of Set-Off................................................... 33
SECTION 3.13. Agreed Tax Treatment............................................... 33
SECTION 3.14. Shortening or Extension of Stated Maturity......................... 34
SECTION 3.15. CUSIP Numbers...................................................... 34
SECTION 3.16. When Treasury Securities Disregarded............................... 34
ARTICLE IV
SATISFACTION AND DISCHARGE .............................. 35
SECTION 4.1. Satisfaction and Discharge of Indenture............................. 35
SECTION 4.2. Application of Company Money........................................ 36
ARTICLE V
REMEDIES ....................................... 36
SECTION 5.1. Events of Default................................................... 36
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.................. 37
SECTION 5.3. Collection Suits by Trustee......................................... 38
SECTION 5.4. Trustee May File Proofs of Claim.................................... 39
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities......... 39
SECTION 5.6. Application of Money Collected...................................... 39
SECTION 5.7. Limitation on Suits................................................. 40
SECTION 5.8. Right of Holders to Receive Payments................................ 40
SECTION 5.9. Direct Action by Holders of Preferred Securities.................... 40
SECTION 5.10. Restoration of Rights and Remedies................................. 41
SECTION 5.11. Rights and Remedies Cumulative..................................... 41
SECTION 5.12. Delay or Omission Not Waiver....................................... 41
SECTION 5.13. Control by Majority................................................ 41
SECTION 5.14. Waiver of Existing Defaults........................................ 42
SECTION 5.15. Undertaking for Costs.............................................. 42
SECTION 5.16. Waiver of Usury, Stay or Extension Laws............................ 42
ARTICLE VI
THE TRUSTEE...................................... 43
SECTION 6.1. Duties of Trustee................................................... 43
SECTION 6.2. Notice of Defaults.................................................. 44
SECTION 6.3. Certain Rights of Trustee........................................... 44
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.............. 45
SECTION 6.5. May Hold Securities................................................. 45
SECTION 6.6. Money Held in Company............................................... 45
SECTION 6.7. Compensation and Reimbursement...................................... 45
SECTION 6.8. Eligibility; Disqualification....................................... 46
SECTION 6.9. Replacement of Trustee.............................................. 46
SECTION 6.10. Acceptance of Appointment by Successor............................. 47
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SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business........ 48
SECTION 6.12. Preferential Collection of Claims Against Group.................... 48
SECTION 6.13. Appointment of Authenticating Agent................................ 48
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND GROUP.................... 50
SECTION 7.1. Securityholder Lists................................................ 50
SECTION 7.2. Communications by Holders with Other Holders........................ 50
SECTION 7.3. Reports by Trustee to Holders....................................... 50
SECTION 7.4. Reports by Group.................................................... 51
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE ................. 51
SECTION 8.1. Group May Consolidate, Etc., Only on Certain Terms.................. 51
SECTION 8.2. Successor Corporation Substituted................................... 52
ARTICLE IX
SUPPLEMENTAL INDENTURES................................ 52
SECTION 9.1. Supplemental Indentures without Consent of Holders.................. 52
SECTION 9.2. Supplemental Indentures with Consent of Holders..................... 53
SECTION 9.3. Execution of Supplemental Indentures................................ 55
SECTION 9.4. Effect of Supplemental Indentures................................... 55
SECTION 9.5. Conformity with Trust Indenture Act................................. 55
SECTION 9.6. Reference in Securities to Supplemental Indentures.................. 55
ARTICLE X
COVENANTS....................................... 56
SECTION 10.1. Payment of Principal, Premium and Interest......................... 56
SECTION 10.2. Maintenance of Office or Agency.................................... 56
SECTION 10.3. Paying Agent to Hold Money in Trust................................ 56
SECTION 10.4. Statement as to Compliance......................................... 56
SECTION 10.5. Waiver of Certain Covenants........................................ 57
SECTION 10.6. Additional Sums.................................................... 57
SECTION 10.7. Additional Covenants............................................... 58
SECTION 10.8. Calculation of Original Issue Discount............................. 59
ARTICLE XI
REDEMPTION OF SECURITIES................................ 59
SECTION 11.1. Applicability of This Article...................................... 59
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SECTION 11.2. Election to Redeem; Notice to Trustee.............................. 59
SECTION 11.3. Selection of Securities to be Redeemed............................. 59
SECTION 11.4. Notice of Redemption............................................... 60
SECTION 11.5. Deposit of Redemption Price........................................ 61
SECTION 11.6. Payment of Securities Called for Redemption........................ 61
SECTION 11.7. Right of Redemption of Securities.................................. 61
ARTICLE XII
SINKING FUNDS..................................... 62
SECTION 12.1. Applicability of Article........................................... 62
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.............. 62
SECTION 12.3. Redemption of Securities for Sinking Fund.......................... 62
ARTICLE XIII
SUBORDINATION OF SECURITIES.............................. 64
SECTION 13.1. Securities Subordinate to Senior Indebtedness...................... 64
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment
Over of Proceeds Upon Dissolution, Etc.......................................... 64
SECTION 13.3. Payment Permitted If No Default.................................... 66
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness............ 66
SECTION 13.5. Provisions Solely to Define Relative Rights........................ 67
SECTION 13.6. Trustee to Effectuate Subordination................................ 67
SECTION 13.7. No Waiver of Subordination Provisions.............................. 67
SECTION 13.8. Notice to Trustee.................................................. 68
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent..... 68
SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.......... 69
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights................................................ 69
SECTION 13.12. Article Applicable to Paying Agents............................... 69
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SUBORDINATED INDENTURE, dated as of March 1, 1997, between DELPHI FINANCIAL
GROUP, INC., a Delaware corporation (hereinafter called "Group") having its
principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as Trustee (hereinafter called the "Trustee").
RECITALS OF GROUP
Group has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured junior subordinated
debt securities in one or more series (hereinafter called the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities of an entire series issued to evidence loans made to Group of the
proceeds from the issuance from time to time by, with respect to an entire
series, a limited liability company or business trust (each a "Company," and,
collectively, the "Companies") of preferred interests in such Company (the
"Preferred Securities" of such Company) and common interests in such Company
(the "Common Securities" of such Company and, collectively with the Preferred
Securities, the "Company Securities" of such Company), and to provide the terms
and conditions upon which the Securities are to be authenticated, issued and
delivered.
All things necessary to make the Securities, when executed by Group and
authenticated and delivered hereunder and duly issued by Group, the valid
obligations of Group, and to make this Indenture a valid agreement of Group, 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 of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, 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;
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(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,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided, that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by Group; and
(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.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.5.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security from the applicable
Interest Payment Date.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which a Company has become subject from time to time as
a result of a Tax Event.
"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; provided, however, that no Company to which
Securities have been issued shall be deemed to be an Affiliate of Group. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.13 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of Group or any
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of Group to have been duly adopted by the Board of
Directors, or such committee of the Board of Directors or officers of Group to
which authority to act on behalf of the Board of Directors has been delegated,
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
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"Bond Resolution", as used in Section 5.14, means a resolution adopted by
the Board of Directors or by an officer or committee of officers pursuant to
delegation by the Board of Directors authorizing a series of Securities.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a Company, the principal office of the Managing
Members (or, in the case of a Company that is a business trust, of the Property
Trustee) under the related Company Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it, then the body performing such duties at such time.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $.01 per share, of Group.
"Company" has the meaning specified in the first recital of this Indenture.
"Company Agreement" means, (i) with respect to a Company that is a limited
liability company, a limited liability company agreement substantially in the
form attached hereto as Annex A, as amended by the form of Amended and Restated
Limited Liability Company Agreement substantially in the form attached hereto as
Annex B, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time and (ii) with respect to a Company that is a statutory
business trust, a trust agreement substantially in such form as may be specified
as contemplated by Section 3.1 with respect to the Securities of any series, in
each case as amended from time to time.
"Company Securities" has the meaning specified in the first recital of this
Indenture.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
at the date hereof is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or
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businesses; (iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person; (iv) every obligation of such Person issued or assumed
as the deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) every
obligation of such Person for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; and (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all dividends
of another Person the payment of which, in either case, such Person has
guaranteed or is responsible or liable for, directly or indirectly, as obligor
or otherwise.
"Default", as used in Section 6.2, means any event which is, or after
notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by Group pursuant to Section 3.1 with respect to
such series (or any successor thereto).
"Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions", with respect to the Company Securities issued by a
Company, means amounts payable in respect of such Company Securities as provided
in the related Company Agreement and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America that, as at the
time of payment, is legal tender for the payment of public and private debts.
"Event of Default" unless otherwise specified in the supplemental indenture
creating a series of Securities has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(h).
"Extension Period" has the meaning specified in Section 3.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve
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is not existing and performing the duties now assigned to it, then the body
performing such duties at such time.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Group" means the Person named as "Group" in the first paragraph of this
Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Group" shall mean such
successor Person.
"Group Request" and "Group Order" mean, respectively, the written request
or order signed in the name of Group by the Chairman of the Board of Directors,
the Vice Chairman of the Board of Directors, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary of Group, and delivered to the Trustee.
"Guarantee", with respect to the Company Securities issued by a Company,
means the guarantee by Group of Distributions on such Company Securities to the
extent provided in the Guarantee Agreement.
"Guarantee Agreement", with respect to the Company Securities issued by a
Company, means the Guarantee Agreement substantially in the form attached hereto
as Annex C, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time.
"Holder" and "Securityholder" means a Person in whose name a Security is
registered in the Securities Register.
"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 and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"Junior Subordinated Debt" means any obligation of Group to its creditors,
whether now outstanding or subsequently incurred, where the instrument creating
or evidencing the obligation or pursuant to which the obligation is outstanding
provides that it is subordinated and junior in right of payment to Senior
Indebtedness pursuant to subordination provisions substantially similar to those
set forth in this Indenture. Junior Subordinated Debt includes the Securities.
"Managing Member" means, (i) in respect of any Company that is a limited
liability company, each person identified as a "Managing Member" in the related
Company Agreement, and
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(i) in respect of any Company that is a business trust, each Person identified
as an "Administrative Trustee" in the related Company Agreement, in each case
solely in such Person's capacity as Managing Member of such Company under such
Company Agreement and not in such Person's individual capacity, or any successor
administrative trustee appointed as therein provided.
"Maturity" when used with respect to any 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.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors , a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of Group, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for, or an employee of, Group, and who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except (i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation, (ii) Securities for whose payment
or redemption price money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent in trust for the Holders of such
Securities, and (iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Securities are held by Holders in whose hands such Securities are
valid, binding and legal obligations of Group; provided, however, that such
definition is subject to the provision of Section 3.16. 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 Group or any
other obligor upon the Securities or any Affiliate of Group or such other
obligor. Upon the written request of the Trustee, Group shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by Group to be owned or held by or for the account of
Group or any other obligor on the Securities or any Affiliate of Group or such
obligor, and, subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
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"Paying Agent" means the Trustee or any Person authorized by Group to pay
the principal of (or premium, if any) or interest on any Securities on behalf of
Group.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest on the
Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"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 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, in respect of any Company that is a business
trust, the commercial bank or trust company identified as the "Property Trustee"
in the related Company Agreement, solely in its capacity as Property Trustee of
such Company under such Company Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"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.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series held by a Company or represented by one or more Global
Securities, the Business Day next preceding such Interest Payment Date and (ii)
in the case of Securities of a series not held by a Company or represented by
one or more Global Securities, the date which is fifteen days next preceding
such Interest Payment Date (whether or not a Business Day).
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
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"Rights Plan" means a plan of Group providing for the issuance by Group to
all holders of its Common Stock of rights entitling the holders thereof to
subscribe for or purchase shares of Common Stock or any class or series of
preferred stock of Group, which rights (i) are deemed to be transferred with
such shares of Common Stock, (ii) are not exercisable and (iii) are also issued
in respect of future issuances of Common Stock, in each case until the
occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it, then the body performing such duties at such time.
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5. "Registrar" shall mean the Securities
Registrar.
"Senior Indebtedness" means any obligation of Group to its creditors,
whether now outstanding or subsequently incurred, other than any obligation as
to which, in the instrument creating or evidencing the obligation or pursuant to
which the obligation is outstanding, it is provided that such obligation is not
Senior Indebtedness. Senior Indebtedness does not include Junior Subordinated
Debt, trade accounts payable or accrued liabilities arising in the ordinary
course of business.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof means the date specified pursuant to the terms of such
Security as the date on which the principal of such Security is due and payable,
as such date may be shortened or extended as provided pursuant to the terms of
such Security and this Indenture. When used with respect to any installment of
interest on any Security, "Stated Maturity" means the date specified pursuant to
the terms of such Security as the date on which such installment of the 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 Group or by one or more
other Subsidiaries, or by Group and one or more other Subsidiaries. For 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.
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"Tax Event", with respect to Securities held by a Company, means the
receipt by such Company of an Opinion of Counsel (as defined in the relevant
Company Agreement) experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities of such Company, there is more than
an insubstantial risk that (i) such Company is, or will be within 90 days of the
date of such Opinion of Counsel, subject to United States federal income tax
with respect to income received or accrued on the corresponding series of
Securities issued by Group to such Company, (ii) interest payable by Group on
such corresponding series of Securities is not, or within 90 days of the date of
such Opinion of Counsel, will not be, deductible by Group, in whole or in part,
for United States federal income tax purposes or (iii) such Company is, or will
be within 90 days of the date of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties or other governmental charges. With
respect to securities not held by a Company, "Tax Event" means the receipt by
Group of an opinion of counsel experienced in such matters to the effect that,
as a result of any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the applicable series of Securities under this Indenture,
there is more than an insubstantial risk that interest payable by Group on such
series of Securities is not, or within 90 days of the date of such opinion will
not be, deductible by Group, in whole or in part, for United States federal
income tax purposes.
"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 or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" and "TIA" mean the Trust Indenture Act of 1939 (15
U.S.C. ss. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Officer", as used in Section 6.1, means the Chairman of the Board,
the President or any other officer or assistant officer of the Trustee assigned
by the Trustee to administer its corporate trust matters.
"Vice President", when used with respect to Group means any duly appointed
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president."
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SECTION 1.2. Certificate and Opinion as to Conditions Precedent.
Upon any application or request by Group to the Trustee to take any action
under this Indenture, Group shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) and an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 1.3. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such person, he has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.4. Forms 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 Group may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel 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 or her certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a
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certificate or opinion of, or representations by, an officer or officers of
Group stating that the information with respect to such factual matters is in
the possession of Group, unless such counsel rendering such Opinion of 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.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to 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 or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is or are
delivered to the Trustee, and, where it is hereby expressly required, to Group.
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 or proxy shall be sufficient for any purpose
of this Indenture and (subject to Section 6.1) conclusive in favor of the
Trustee and Group, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any 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 Person acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person 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 and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the 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 Group in reliance thereon,
whether or not notation of such action is made upon such Security.
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(f) Group may fix a record date for determining which Holders may consent
to an amendment, supplement or waiver or other action. Only Holders of
Securities of any affected series on the record date may consent to such
amendment, supplement or waiver or other action.
(g) Notwithstanding Section 1.4(f), the Trustee (and only the Trustee) may
set any day as a record date for the purpose of determining the Holders of
Outstanding Securities entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
5.2, (iii) any request to institute proceedings referred to in Section 5.7(2) or
(iv) any direction referred to in Section 5.13, in each case with respect to the
relevant Securities. If any record date is set pursuant to this paragraph, the
Holders of the relevant Outstanding Securities on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of the relevant Outstanding Securities on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at Group's expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to Group in writing and to each Holder of
the relevant Securities in the manner set forth in Section 1.6.
(h) With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of the relevant Outstanding Securities in the manner set forth in
Section 1.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(i) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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SECTION 1.6. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or by facsimile transmission or mailed by first-class mail,
postage prepaid, addressed as follows:
If to Group:
Delphi Financial Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ____________________
If to the Trustee:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Group or the Trustee by notice to the others may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to
him or her at his or her address as it appears on the registration books of the
Registrar and shall be sufficiently given to him or her if so mailed within the
time prescribed.
Failure to mail a notice of communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to the other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8. 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.
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SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by Group shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision of 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.
SECTION 1.11 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 and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.10, 5.12, 5.14,
9.1 and 9.2, the holders of Preferred Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. 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 CONFLICTS
OF LAW PRINCIPLES THEREOF.
SECTION 1.13. Non-Business Days.
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 the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
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ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case 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 applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Securities may be
listed or traded or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of Group and delivered to
the Trustee at or prior to the delivery of Group Order contemplated by Section
3.3 with respect to the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Securities may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or automated quotation system on which the Securities may be listed or traded,
all as determined by the officers executing such Securities, as evidenced by
their execution of such securities.
SECTION 2.2. Form of Face of Security.
DELPHI FINANCIAL GROUP, INC. CUSIP ____
__% Junior Subordinated Deferrable Interest Debentures
No. $
DELPHI FINANCIAL GROUP, INC., a corporation organized and existing under
the laws of the state of Delaware (hereinafter called "Group", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ____________________, or
registered assigns, the principal sum of ____________________ Dollars on
__________ __, ____ [; provided that Group may, subject to certain conditions
set forth in Section 3.14 of the Indenture, (i) shorten the Stated Maturity of
the principal of
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this Security to a date not earlier than __________ __, ____, and (ii) extend
the Stated Maturity of the principal of this Security at any time on one or more
occasions, but in no event to a date later than __________ __, ____]. Group
further promises to pay interest on said principal sum from __________ __, ____,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") on which interest has been paid or duly provided for, [monthly]
[quarterly] [semi-annually] [if applicable, insert - (subject to deferral as set
forth herein)] in arrears on [insert applicable Interest Payment Dates] of each
year, commencing __________ __, ____, at the rate of ___% per annum, until the
principal hereof shall have become due and payable, [if applicable, insert -
plus Additional Interest, if any,] until the principal hereof is paid or duly
provided for or made available for payment [if applicable, insert - and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of ___% per annum, compounded [monthly] [quarterly]
[semi-annually]]. The amount of interest payable for any period shall be
computed on the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Security is not a Business
Day, then a payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee [if applicable, insert - or the principal office of the
[Managing Members] [Property Trustee] under the Company Agreement hereinafter
referred to for [insert name of Company],] is closed for business. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
installment, which shall be the [insert definition of Regular Record Dates]. Any
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Securities of
this series may be listed or traded, and upon such notice as may be required by
such exchange or self-regulatory organization, all as more fully provided in
said Indenture.
[If applicable, insert - So long as no Event of Default has occurred and is
continuing, Group shall have the right at any time during the term of this
Security to defer payment of interest on this Security, at any time or from time
to time, for up to ____ consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period"), during which Extension Periods Group shall have the right to make
partial payments of interest on any Interest Payment Date, and at the end of
which Group shall pay all interest then accrued and
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unpaid (together with Additional Interest thereon to the extent permitted by
applicable law); provided, however, that no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security; provided, further, that
during any such Extension Period, Group shall not, and shall not permit any
Subsidiary of Group to, (i) declare or pay any dividends or distributions on or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
Group's capital stock or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt security of Group
that ranks pari passu with or junior in interest to this Security or (iii) make
any guarantee payments with respect to any guarantee by Group of the debt
securities of any Subsidiary of Group if such guarantee ranks pari passu with or
junior in interest to this Security (other than (a) dividends or distributions
in Group's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
with respect to this Security, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights or options under any of Group's benefit plans
for its directors, officers, employees or other persons within the definition of
"employee" for purposes of a registration of shares for an employee benefit plan
of Group, related to the issuance of Common Stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of Common Stock
(or securities convertible or exchangeable for Common Stock) as consideration in
an acquisition transaction that was entered into prior to the commencement of
such Extension Period). Prior to the termination of any such Extension Period,
Group may further defer the payment of interest, provided that no Extension
Period shall exceed ___ consecutive [months] [quarters] [semi-annual periods] or
extend beyond the Stated Maturity of the principal of this Security. Upon the
termination of any such Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due, Group may elect to begin a
new Extension Period, subject to the above requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. Group
shall give the Holder of this Security and the Trustee notice of its election to
begin any Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral [if applicable, insert - or, with respect to the
Securities issued to a Company, so long as such Securities are held by such
Company, prior to the earlier of (i) the next succeeding date on which
Distributions on the Preferred Securities would be payable but for such deferral
or (ii) the date the Managing Members are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date]].
Payment of principal of (and premium, if any) and interest on this Security
will be made at the office or agency of Group maintained for that purpose in the
United States, 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 [if
applicable, insert - ; provided, however, that at the option of Group payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register or (ii) by wire
transfer or direct deposit in immediately available funds at such place and to
such account as may be designated in writing by the relevant Regular Record Date
by the Person entitled thereto as specified in the Securities Register].
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The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
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, Group has caused this instrument to be duly executed
under its corporate seal.
DELPHI FINANCIAL GROUP, INC.
By: ___________________________________
[President or Vice President]
Attest:
____________________________________________
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of Group
(herein called the "Securities"), issued and to be issued in one or more series
under a Subordinated Indenture, dated as of __________ __, 1997 (herein called
the "Indenture"), between Group and Wilmington Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, Group and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $___________].
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All terms used in this Security that are defined in the Indenture [if
applicable, insert - or in the Amended and Restated [Limited Liability Company]
[Trust] Agreement, dated as of __________ __, ____, as amended (the "Company
Agreement"), for [insert name of Company] among Delphi Financial Group, Inc., as
[Managing Member] [Depositor], [if applicable, insert names of other Managing
Members] [if applicable, insert - the Trustees named therein], and the Holders
of Capital Securities described therein, [if applicable, insert - as Members]]
shall have the meanings assigned to them in the Indenture [if applicable, insert
- or the Company Agreement, as the case may be].
[If applicable, insert - Group may at any time, at its option, on or after
__________ __, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable, insert
- including Additional Interest, if any] to the Redemption Date.]
Upon the occurrence and during the continuation of a Tax Event, Group may,
at its option, at any time within 90 days of the occurrence of such Tax Event,
redeem this Security, in whole but not in part, subject to the provisions of
Section 11.7 and the other provisions of Article XI of the Indenture, at a
redemption price equal to [100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date].
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by Group with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, Group
and the Trustee at any time to enter into a supplemental indenture or indentures
for the purpose of modifying in any manner the rights and obligations of Group
and of the Holders of the Securities, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Securities of all
series to be affected by such supplemental indenture. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Securities of all series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by Group 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 hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, - As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding 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 of this series may declare the
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principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to Group (and to the Trustee if given by
Holders), provided that, in the case of the Securities of this series issued to
a Company, if upon an Event of Default, the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series fails
to declare the principal of all the Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of
the Preferred Securities then outstanding shall have such right by a notice in
writing to Group and the Trustee; and upon any such declaration the principal
amount of and the accrued interest (including any Additional Interest) on all
the Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture.]
[If the Security is a Discount Security, - As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to Group (and to the Trustee if
given by Holders), provided that, in the case of the Securities of this series
issued to a Company, if upon an Event of Default, the Trustee or the Holders of
the requisite principal amount of the Outstanding Securities of this series
fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have such
right by a notice in writing to Group and the Trustee. Such amount shall be
equal to - insert formula for determining the amount. Upon any such declaration,
such amount of the principal of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of Group's
obligations in respect of the payment of the principal of and interest, if any,
on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of Group, which is
absolute and unconditional, to pay the principal of (and 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 Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of Group maintained under Section 10.2 of the Indenture duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to Group
and the Securities Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated
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transferee or transferees. No service charge shall be made for any such
registration of transfer or exchange, but Group 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,
Group, the Trustee and any agent of Group 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 Group, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in denominations of $_____ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
Group and, by its acceptance of this Security or a beneficial interest
therein, the Holder of, and any Person that acquires a beneficial interest in,
this Security agree that for United States federal, state and local tax purposes
it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
SECTION 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for Securities registered
in the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture and may not otherwise be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5. Form of Trustee's Certificate of Authentication.
Each Security issued hereunder shall be authenticated by the Authentication
Agent as follows:
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"This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
WILMINGTON TRUST COMPANY
as Trustee
By: _______________________________
[Authorized Signatory]"
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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 unlimited.
The Securities may be issued from time to time in one or more series. The
following matters shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the Securities of such series, which shall distinguish the
Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to the last paragraph of Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall
bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of Group to defer or
extend an Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the foregoing
shall be determined;
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon Group in respect of the Securities of such series may be made;
(f) the period or periods within which, or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
Group;
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(g) the obligation or the right, if any, of Group to redeem, repay or
purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified event,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including currency
unit or units) in which and the other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $25 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of Group set forth herein with respect to the Securities of
such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to the
Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to or in
lieu of those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
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(q) the terms of any right to convert or exchange Securities of such series
into any other securities or property of Group, and the additions or changes, if
any, to this Indenture with respect to the Securities of such series to permit
or facilitate such conversion or exchange;
(r) the form or forms of the Company Agreement, Amended and Restated
Company Agreement and Guarantee Agreement, if different from the forms attached
hereto as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided herein or in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
Group and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple thereof,
unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of Group by its President or one
of its Vice Presidents under its corporate seal reproduced or impressed thereon
and attested by its Secretary or one of its Assistant Secretaries. 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 Group shall bind Group, 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
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delivery of this Indenture, Group may deliver Securities of any series executed
by Group to the Trustee for authentication, together with a Group Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with Group Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
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,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by Group in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of Group enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(4) that all requirements of New York and Federal law and the Delaware
Corporation Law in respect of the execution and delivery by Group of such
Securities, and all covenants and conditions set forth in this Indenture
which are conditions precedent hereto, have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or Group Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
Each Security shall be dated the date of its authentication.
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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 the manual signature of one of its authorized
signatories, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by
Group, and Group shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, Group may
execute, and upon Group Order the Trustee shall authenticate and make available
for delivery, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities of such series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, Group will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of Group designated for that purpose without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, Group shall execute and the Trustee shall authenticate and
make available for delivery in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations, of like
aggregate principal amount, having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.5. Registration, Transfer and Exchange.
Group shall cause to be kept at the Corporate Trust Office of the Trustee a
register in which, subject to such reasonable regulations as it may prescribe,
Group shall provide for the registration of Securities and of transfers of
Securities. Such register is herein sometimes referred to as the "Securities
Register." The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of Group designated for that purpose Group shall execute, and the
Trustee shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series of any authorized denominations, of a like aggregate principal amount, of
the same Original Issue Date and Stated Maturity and having the same terms.
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At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
Group shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of Group, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by Group or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to Group
and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Securities, but Group may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) 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, 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
Group that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency registered under
the Exchange Act at a time when the Depositary is required to be so
registered to act as depositary, in either case unless Group has approved a
successor Depositary within 90 days, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security, (C)
Group in its sole discretion determines that such Global Security will be
so exchangeable or transferable or (D) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 3.1.
(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
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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 3.4, 3.6, 9.6 or
11.6 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.
Neither Group nor the Trustee shall be required, pursuant to the provisions
of this Section, (a) to issue, transfer or exchange any Security of any series
during a period beginning at the opening of business 15 days before the mailing
of notice of redemption of Securities pursuant to Article XI and ending at the
close of business on the day of such mailing of notice of redemption or (b) to
transfer or exchange any Security selected for redemption in whole or in part,
except, in the case of any Security to be redeemed in part, any portion thereof
not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by Group or the Trustee to hold each of
them harmless, Group shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a new Security of the same issue and
series of like tenor and principal amount, having the same Original Issue Date
and Stated Maturity and bearing the same interest rate as such mutilated
Security, and bearing a number not contemporaneously outstanding.
If there shall be delivered to Group and to 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 hold each of them
harmless, then, in the absence of notice to Group or the Trustee that such
Security has been acquired by a bona fide purchaser, Group shall execute and
upon its request the Trustee shall authenticate and make available for delivery,
in lieu of any such destroyed, lost or stolen Security, a new Security of the
same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such destroyed, lost or stolen Security, 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, Group in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, Group 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 Group, whether or not the
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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 of that series 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 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series 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
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities. At the option of
Group, interest on any series of Securities may be paid (i) by check mailed to
the address of the Person entitled thereto as it shall appear on the Securities
Register of such series or (ii) by wire transfer or direct deposit in
immediately available funds at such place and to such account as designated by
the Person entitled thereto as specified in the Securities Register of such
series, provided that proper transfer instructions have been received prior to
the relevant Regular Record Date.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by Group, at its election
in each case, as provided in Clause (1) or (2) below:
(1) Group may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series in respect of which
interest is in default (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. Group
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 Group 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
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Group of such Special Record Date and, in the name and at the expense of Group,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class, postage prepaid, to each
Holder of a Security of such series at the address of such Holder as it appears
in the Securities Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense of
Group, cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) Group may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange or
automated quotation system on which the Securities of the series in respect of
which interest is in default may be listed or traded and, upon such notice as
may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by Group to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Any interest on any Security which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
Group, the Trustee and any agent of Group or the Trustee may treat the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (subject to Section
3.7) any interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither Group, the Trustee nor any
affected by notice to the contrary.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. Group may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which Group may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be
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authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities shall be returned by the Trustee to Group and destroyed by Group.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any period shall be
computed on the basis of a 360- day year of twelve 30-day months and interest on
the Securities of each series for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30-day months.
SECTION 3.11. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, Group shall have the right, at any time during the
term of such series, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section 3.1 (each, an "Extension Period") during which Extension Periods Group
shall have the right to make partial payments of interest on any Interest
Payment Date. No Extension Period shall end on a date other than an Interest
Payment Date. At the end of any such Extension Period Group shall pay all
interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law) to the Persons in whose names
that Securities are registered at the close of business on the Regular Record
Date with respect to the Interest Payment Date at the end of such Extension
Period; provided, however, that no Extension Period shall extend beyond the
Stated Maturity of the principal of the Securities of such series; provided,
further, that during any such Extension Period, Group shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of Group's capital stock, (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt security of Group
that ranks pari passu with or junior in interest to the Securities of such
series or (iii) make any guarantee payments with respect to any guarantee by
Group of the debt securities of any Subsidiary of Group that by their terms rank
pari passu with or junior in interest to the securities of such series (other
than (a) dividends or distributions in Group's capital stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, or the redemption or repurchase of any rights distributed pursuant to a
the Guarantee with respect to such Security, and (d) purchases of Common Stock
related to the issuance of Common Stock or rights or options under any of
Group's benefit plans for its directors, officers, employees or other persons
within the definition of "employee" for purposes of a registration of shares for
an employee benefit plan of Group, related to the issuance of Common Stock or
rights under a dividend reinvestment and stock purchase plan, or related to the
issuance of Common Stock (or securities convertible or exchangeable for Common
Stock) as consideration in an acquisition transaction that was entered into
prior to the commencement of such Extension Period). Prior to the termination of
any such Extension Period, Group may further defer the payment of interest,
provided that no Extension Period shall exceed the period or periods specified
in such
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Securities or extend beyond the Stated Maturity of the principal of such
Securities. Upon termination of any Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, Group may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. Group shall give the Holders of the
Securities of such series and the Trustee written notice of its election to
begin any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Securities of such series
would be payable but for such deferral or, with respect to the Securities of a
series issued to a Company, so long as such Securities are held by such Company,
prior to the earlier of (i) the next succeeding date on which Distributions on
the Preferred Securities of such Company would be payable but for such deferral
or (ii) the date such Company is required to give notice to any securities
exchange or other applicable self-regulatory organization or to holders of such
Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record
date.
The Trustee shall promptly give notice, in the name and at the expense of
Group, of Group's election to begin any such Extension Period to the Holders of
the Outstanding Securities of such series.
SECTION 3.12. Right of Set-Off.
With respect to the Securities of a series issued to a Company,
notwithstanding anything to the contrary in the Indenture, Group shall have the
right to set-off any payment it is otherwise required to make thereunder in
respect of any such Security to the extent Group has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee
relating to such Security or under Section 5.8 or 5.9 of the Indenture.
SECTION 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that Group and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security intend that
such Security constitutes indebtedness and agree to treat such Security as
indebtedness for United States federal, local and state tax purposes.
SECTION 3.14. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, Group shall have the right to (i) shorten
the Stated Maturity of the principal of the Securities of such series at any
time to any date not earlier than the first date on which Group has the right to
redeem the Securities of such series, and (ii) extend the Stated Maturity of the
principal of the Securities of such series at any time at its election for one
or more periods, but in no event to a date later than the 49th anniversary of
the Original Issue Date of the Securities of such series; provided that, if
Group elects to exercise its right to extend the Stated Maturity of the
principal of the Securities of such series pursuant to clause (ii), above, at
the time such election is made and at
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the time of extension (A) Group is not in bankruptcy, otherwise insolvent or in
liquidation, (B) Group is not in default in the payment of any interest or
principal on such Securities, (C) in the case of any series of Securities held
by a Company, such Company is not in arrears on payments of Distributions on the
Preferred Securities issued by such Company and no deferred Distributions are
accumulated, (D) such Securities are rated not less than BBB-by S&P or Baa3 by
▇▇▇▇▇'▇ or the equivalent by any other nationally recognized statistical rating
organization and (E) the Securities will not have a remaining period to maturity
of more than 30 years after such extension. In the event Group elects to shorten
or extend the Stated Maturity of any Securities, it shall give written notice to
the Trustee, and the Trustee shall give notice of such shortening or extension
to the Holders, no less than 30 and no more than 60 days prior to the
effectiveness thereof.
SECTION 3.15. CUSIP Numbers.
Group in issuing the Securities may use "CUSIP" numbers (if then generally
in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. Group will promptly notify the Trustee of any change
in the CUSIP numbers.
SECTION 3.16. When Treasury Securities Disregarded.
In determining whether the Holders of the required principal amount of
Securities outstanding have concurred in any direction, waiver or consent,
Securities owned by Group or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with Group shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be disregarded.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Group Request, 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 as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of Group, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
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(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 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by Group and thereafter repaid to Group 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
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year of the date of deposit, or
(iii) 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 Group,
and Group, in the case of Clause (B) (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such purpose
an amount in the currency or currencies in which the Securities of such series
are payable sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest (including any Additional 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) Group has paid or caused to be paid all other sums payable hereunder by
Group; and
(3) Group 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 Group to the Trustee under Section 6.7, the obligations of Group
to any Authenticating Agent under Section 6.13 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 10.3 shall
survive.
SECTION 4.2. Application of Company Money.
All money deposited with the Trustee pursuant to Section 4.1 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
Paying Agent (including Group acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
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ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the Securities of
any series, 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 of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any interest payment date in the case of an
Extension Period); or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of any
covenant or warranty of Group in this Indenture with respect to that series
(other than a covenant or warranty a default in the performance of which or the
breach of which is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to Group by the Trustee or to Group
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises adjudging Group bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of Group under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of Group 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 unstayed and in
effect for a period of 60 consecutive days; or
(5) the institution by Group of proceedings to be adjudicated bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or the consent by
it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of Group
or of any substantial part of its property, or the making by it of an assignment
for the benefit for creditors, or the admission by it in writing of its
inability to pay its
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debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by Group in furtherance of any such
action; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding 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 of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to Group
(and to the Trustee if given by Holders), provided that, in the case of the
Securities of a series issued to a Company, if, upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal amount (or,
if the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to Group and the Trustee; and upon any such declaration such principal
amount (or specified portion thereof) of and the accrued interest (including any
Additional Interest) on all the Securities of such series shall become
immediately due and payable. Payment of principal and interest (including any
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIII notwithstanding that such amount shall become
immediately due and payable as herein provided. If an Event of Default specified
in Section 5.1(4) or 5.1(5) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if the Securities of that series are Discount Securities, such portion of
the principal amount of such Securities as may be specified by the terms of that
series) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series 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 of that series, by written notice to Group and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) Group has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(C) 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
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.14;
provided that, in the case of Securities of a series held by a Company, if the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series fails to rescind and annul such declaration and its consequences,
the holders of a majority in aggregate Liquidation Amount (as defined in the
Company Agreement under which such Company is formed) of the related series of
Preferred Securities then outstanding shall have such right by written notice to
Group and the Trustee, subject to the satisfaction of the conditions set forth
in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection Suits by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 5.1(1) or (2) occurs and is continuing on a series, the Trustee, subject
to Section 8.2, may recover judgment in its own name and as trustee of an
express trust against Group for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 5.4. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to Group and its
creditors or property. Nothing herein shall be deemed to authorize the Trustee
to authorize or consent to or accept on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities,
or to authorize the Trustee to vote in respect of the claim of any
Securityholder 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
recovery of judgment shall, after provision for the payment of all the amounts
owing the Trustee and any predecessor Trustee under Section 6.7, its agents and
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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 or property collected or to be applied by the Trustee with
respect to a series of Securities 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 or property on account of principal (or premium,
if any) or interest (including any Additional 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 and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due and
unpaid upon such series of Securities for principal (and premium, if any),
interest (including any Additional Interest) and Additional Taxes, 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 series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series 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 security
or 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 security or 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 of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Right of Holders to Receive Payments.
Notwithstanding any other provision in this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest on the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holders.
SECTION 5.9. Direct Action by Holders of Preferred Securities.
In the case of Securities of a series held by a Company, any holder of the
corresponding series of Preferred Securities held by such Company shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2), to institute a suit directly against Group for enforcement of payment to
such holder of principal of (premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
Company Agreement under which such Company is formed) of such Preferred
Securities of the corresponding series held by such holder.
SECTION 5.10. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities 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, such Holder or such holder of
Preferred Securities, then and in every such case Group, the Trustee, the
Holders and such holder of Preferred Securities shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, the Holders and the holders of Preferred Securities shall continue as
though no such proceeding had been instituted.
SECTION 5.11. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, 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
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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 5.12. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred 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 and the right and remedy given to the holders of Preferred
Securities by Section 5.8 and 5.9 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, the Holders or the holders of
Preferred Securities, as the case may be.
SECTION 5.13. Control by Majority.
The Holders of a majority in principal amount of a series may 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 it under this
Indenture with respect to the series. The Trustee, however, subject to Sections
6.1 and 6.3, may refuse to follow any direction that conflicts with law or this
Indenture. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.14. Waiver of Existing Defaults.
Subject to Section 9.2, and unless a Bond Resolution or Supplemental
Indenture otherwise provides, the Holders of a majority in principal amount of a
series by notice to the Trustee may consent to the waiver of a past or existing
Default or Event of Default on the series and its consequences. When a Default
or Event of Default is waived, it is cured. No such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right or
consequence thereon.
SECTION 5.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of
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the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on any Security on or after
the respective Stated Maturities expressed in such Security.
SECTION 5.16. Waiver of Usury, Stay or Extension Laws.
Group 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 usury, 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 Group (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. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing on a series, the
Trustee shall exercise its rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default on a series:
(1) The Trustee shall not be liable except for the performance of such
duties as are specifically set out in this Indenture.
(2) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The Trustee, however, shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
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(3) The Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 5.14.
(d) 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.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section.
(f) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(g) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with Group.
SECTION 6.2. Notice of Defaults.
If a Default occurs and is continuing on a series and if it is known to the
Trustee, the Trustee shall mail to each Securityholder of the series notice of
the Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Security of a series, the Trustee may
withhold the notice if and so long as the board of directors of the Trustee, the
executive or any trust committee of such board and/or responsible officers of
the Trustee in good faith determine(s) that withholding the notice is in the
interest of the Securityholders of the series.
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, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of Group mentioned herein shall be
sufficiently evidenced by a Group Request or Group 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;
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(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, 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, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of Group, personally or
by agent or attorney;
(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; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
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 Group, and
neither the Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by Group of
the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of Group, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 6.8 and
6.12, may otherwise deal with Group with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Securities Registrar or
such other agent.
SECTION 6.6. Money Held in Company.
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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 in writing with Group.
SECTION 6.7. Compensation and Reimbursement.
Group, as borrower, agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between Group and the Trustee 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) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or bad
faith, arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Agreement.
To secure Group's payment obligations in this Section, Group and the
Holders agree that the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee. Such lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1). The Trustee shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b).
SECTION 6.9. Replacement of Trustee.
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The Trustee may resign by so notifying Group. The Holders of a majority in
principal amount of the outstanding Securities may remove the Trustee by so
notifying the removed Trustee and may appoint a successor Trustee with Group's
consent. Group may remove the Trustee if:
(1) the Trustee fails to comply with Section 6.8;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of the Trustee for any reason, Group shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to Group. Immediately thereafter, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee shall mail notice of
its succession to each Securityholder.
SECTION 6.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to Group and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of Group or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, Group, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any
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of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
Group or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, Group shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of 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, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.12. Preferential Collection of Claims Against Group.
If and when the Trustee shall be or become a creditor of Group (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
Group (or any such other obligor).
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SECTION 6.13. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, 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. Each Authenticating Agent shall be acceptable to Group and
shall at all times be a corporation organized and doing business under the laws
of the United States of America, or of any state or territory or the District of
Columbia, 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 all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, 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 Group. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to Group. 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 Group and shall give notice of such appointment in the manner
provided in Section 1.6 to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve. 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 provision of this Section.
Group 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 with respect to one or more series is made pursuant to
this Section, the Securities of such series 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 referred to in the within mentioned
Indenture.
Dated:
/s/ WILMINGTON TRUST COMPANY
----------------------------
As Trustee
By:
-------------------------
As Authenticating Agent
By:
-------------------------
Authorized Officer"
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND GROUP
SECTION 7.1. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, Group, based on all
information in its possession or control, shall furnish to the Trustee on or
before each semiannual interest payment date and at such other times as the
Trustee may request in writing a list of the names and addresses of the
Securityholders in such form and as of such date as the Trustee may reasonably
require.
SECTION 7.2. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture of the
Securities. Group, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
SECTION 7.3. Reports by Trustee to Holders.
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Within 60 days after each May 15 beginning with May 15, 1997, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange, if any, on which the Securities
are listed.
SECTION 7.4. Reports by Group.
Group shall file with the Trustee, within 15 days after Group files them
with the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which Group is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. If Group
is not required to file information, documents or reports pursuant to either of
such sections, then Group shall file with the Trustee and the SEC, in accordance
with rules and regulations prescribed by the SEC, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, in respect of a security
listed and registered on a national securities exchange as may be prescribed in
such rules and regulations. Group also shall comply with the other provisions of
TIA ss. 314(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Group May Consolidate, Etc., Only on Certain Terms.
Group shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and no Person shall consolidate with or merge into Group or convey,
transfer or lease its properties and assets substantially as an entirety to
Group, unless:
(1) in case Group shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, the Person formed by such consolidation or into which Group is
merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of Group substantially as an entirety shall be a
corporation, partnership or trust organized and existing under the laws of the
United States of America or any State or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest (including any Additional
Interest) on all the Securities and the performance of every covenant of this
Indenture on the part of Group to be performed or observed;
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(2) immediately after giving effect to 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 happened and be continuing;
(3) in the case of the Securities of a series held by a Company, such
consolidation, merger, conveyance, transfer or lease is permitted under the
related Company Agreement and Guarantee and does not give rise to any breach or
violation of the related Company Agreement or Guarantee; and
(4) Group has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by Group with or into any other Person, or
any conveyance, transfer or lease by Group of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1, the
successor Person formed by such consolidation or into which Group 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, Group under this
Indenture with the same effect as if such successor Person had been named as
Group herein; and in the event of any such conveyance, transfer or lease Group
shall be discharged from all obligations and covenants under the Indenture and
the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of Group, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by Group and delivered to
the Trustee; and, upon the written order of such successor Person instead of
Group and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall make available for delivery
any Securities which previously shall have been signed and delivered by the
officers of Group to the Trustee for authentication pursuant to such provisions
and any Securities which such successor Person thereafter shall cause to be
signed and delivered to the Trustee on its behalf for the purpose pursuant to
such provisions. All the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, Group, 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 reasonably satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to Group, and the
assumption by any such successor of the covenants of Group herein and in the
Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee or to surrender any right or power herein conferred upon Group; or
(3) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 or 3.1; or
(4) to add to the covenants of Group for the benefit of the Holders of all
or any series of Securities (and if such covenants are to be for the benefit of
less than all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to surrender any right
or power herein conferred upon Group; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to a
Company and for so long as any of the corresponding series of Preferred
Securities issued by such Company shall remain outstanding, the holders of such
Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.10(b); or
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(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to Group and the
Trustee, Group, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, 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
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.14 or Section
10.5, 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 Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with respect to
the subordination of Outstanding Securities of any series in a manner adverse to
the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to a
Company, so long as any of the corresponding series of Preferred Securities
issued by such Company remains outstanding, (i) no such amendment shall be made
that adversely affects the holders of such Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the Company Agreement under
which such Company is organized) of such Preferred Securities then
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outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and, subject to Section 3.7, unpaid
interest (including any Additional Interest) thereon have been paid in full and
(ii) no amendment shall be made to Sections 5.8 or 5.9 of this Indenture that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the holders of each Preferred Security then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and (subject to Section 3.7) unpaid
interest (including any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of the Holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Preferred Securities of any other series.
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 Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. 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 as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
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Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by Group, bear a
notation in form approved by Group as to any matter provided for in such
supplemental indenture. If Group shall so determine, new Securities of any
series so modified as to conform, in the opinion of Group, to any such
supplemental indenture may be prepared and executed by Group and authenticated
and delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
Group covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay the principal of (and premium, if any) and
interest (including Additional Interest) on the Securities of that series in
accordance with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
Group will maintain in each Place of Payment for any series of Securities,
an office or agency where Securities of that series may be presented or
surrendered for payment and an office or agency where Securities of that series
may be surrendered for transfer or exchange and where notices and demands to or
upon Group in respect of the Securities of that series and this Indenture may be
served. Group initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. Group will give prompt written notice to
the Trustee of any change in the location of any such office or agency. If at
any time Group shall fail to maintain such 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 Group hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Group 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 of
such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
Group of its obligation to maintain an office or agency in each Place of Payment
for Securities of any series for such purposes. Group will give prompt written
notice to the Trustee of any such designation and any change in the location of
any such office or agency.
SECTION 10.3. Paying Agent to Hold Money in Trust.
Each Paying Agent for a series shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Securities of the
series, and shall notify the Trustee of any default by the Company in making any
such payment. If Group or one of its Subsidiaries acts as Paying Agent, it shall
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segregate the money and hold it as a separate trust fund. Group or the Trustee
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon doing so the Paying Agent shall have no further liability for the
money.
SECTION 10.4. Statement as to Compliance.
Group shall deliver to the Trustee, within 120 days after the end of each
calendar year of Group ending after the date hereof, an Officers' Certificate,
one of the signatories of which shall be the principal executive, principal
financial or principal accounting officer of Group, covering the preceding
calendar year, stating whether or not to the best knowledge of the signers
thereof Group is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if Group shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge. For the purpose
of this Section, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Group may omit in any particular instance to comply with any covenant or
condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with respect to the
Securities of any series, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series 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 Group in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to a Company, so
long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, if (i) a
Company is the Holder of all of the Outstanding Securities of such series, and
(ii) a Tax Event has occurred and is continuing in respect of such Securities,
Group shall pay to such Company (or its permitted successor under the related
Company Agreement) for so long as such Company (or its permitted successor) is
the registered holder of the Outstanding Securities of such series, together
with any payment of principal of (or premium, if any) or interest (including any
Additional Interest) on such Securities, such additional sums as may be
necessary in order that the amount of Distributions (including any Additional
Amounts (as defined in such Company Agreement)) then payable by such Company in
respect of the related Preferred Securities and Common Securities in accordance
with the terms thereof shall not be reduced as a result of any Additional Taxes
arising from such Tax Event (the "Additional Sums"). Whenever in this Indenture
or the Securities there is a reference in any context to the payment of
principal of (or premium, if any) or interest (including Additional Interest) on
the Securities, such mention shall be deemed to include mention of the payments
of the Additional Sums provided for in this paragraph to the extent
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that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph, and any express mention of
the payment of Additional Sums (if applicable) in any provision hereof shall not
be construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the payment
of interest pursuant to Section 3.11 or the terms of the Securities shall not
defer the payment of any Additional Sums that may be due and payable.
SECTION 10.7. Additional Covenants.
Group covenants and agrees with each Holder of Securities of each series
that it shall not, and it shall not permit any Subsidiary of Group to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any shares of Group's capital
stock, or (ii) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt securities of Group that rank pari
passu with or junior in interest to the Securities of such series or (iii) make
any guarantee payments with respect to any guarantee by Group of debt securities
of any subsidiary of Group if such guarantee ranks pari passu with or junior in
interest to the Securities (other than (a) dividends or distributions in Group's
capital stock, (b) any declaration of a dividend in connection with the
implementation of a Rights Plan or the redemption or repurchase of any rights
distributed pursuant to a Rights Plan, (c) payments under the Guarantee with
respect to the Preferred Securities relating to Securities of such Series, and
(d) purchases of Common Stock related to the issuance of Common Stock or rights
or options under any of Group's benefit plans for its directors, officers,
employees or other persons within the definition of "employee" for purposes of a
registration of shares for an employee benefit plan of Group, related to the
issuance of Common Stock or rights under a dividend reinvestment and stock
purchase plan, or related to the issuance of Common Stock (or securities
convertible or exchangeable for Common Stock) as consideration in an acquisition
transaction that was entered into prior to the commencement of such Extension
Period) if at such time (x) there shall have occurred any event of which Group
has actual knowledge that (A) with the giving of notice or the lapse of time or
both, would constitute an Event of Default with respect to the Securities of
such series and (B) in respect of which Group shall not have taken reasonable
steps to cure, (y) if the Securities of such series are held by a Company, Group
shall be in default with respect to its payment of any obligations under the
Guarantee relating to the Preferred Securities issued by such Company or (z)
Group shall have given notice of its election to begin an Extension Period with
respect to the Securities of such series as provided herein and shall not have
rescinded such notice, or such Extension Period, or any extension thereof, shall
be continuing.
Group also covenants with each Holder of Securities of a series issued to a
Company (i) to maintain directly or indirectly 100% ownership of the Common
Securities of such Company; provided, however, that any permitted successor of
Group hereunder may succeed to Group's ownership of such Common Securities, (ii)
not to voluntarily terminate, wind-up or liquidate such Company, except (a) in
connection with a distribution of the Securities of such series to the holders
of the Company Securities of such Company in liquidation of such Company or (b)
in connection with certain mergers, consolidations or amalgamations permitted by
the related Company Agreement and (iii) to use its reasonable efforts,
consistent with the terms and provisions of such Company
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Agreement, to cause such Company to remain not taxable as a corporation for
United States federal income tax purposes.
SECTION 10.8. Calculation of Original Issue Discount.
Group shall file with the Trustee promptly at the end of each calendar year
a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the end
of such year, if any.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $25 or, in the case of the
Securities of a series issued to a Company, $25, or integral multiples thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of Group to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
Group of the Securities, Group shall, not less than 45 nor more than 60 days
prior to the Redemption Date (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such date and of the principal amount of
Securities of that series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities, Group shall furnish the Trustee with
an Officers' Certificate and an Opinion of Counsel evidencing compliance with
such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of a specified tenor are to be redeemed or unless such
redemption affects only a single Security), 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 of such series not previously
called for redemption, by lot or such other method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be
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in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), 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 of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify Group in writing of the Securities
selected for partial redemption and 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 Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If Group
shall so direct, Securities registered in the name of Group, any Affiliate or
any Subsidiary thereof shall not be included in the Securities selected for
redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of
redemption shall identify the Securities to be redeemed (including CUSIP number,
if a CUSIP number has been assigned to such Securities of such Series) and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of Group
shall be given by Group or, at Group's request, by the Trustee in the name and
at the expense of Group and shall not
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be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, Group will deposit
with the Trustee or with one or more Paying Agents (or if Group is acting as its
own Paying Agent, Group will segregate and hold in trust as provided in Section
10.3) an amount of money sufficient to pay the Redemption Price of, and any
accrued interest (including Additional Interest) on, all the Securities which
are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price. On presentation and surrender
of such Securities at a Place of Payment in said notice specified, the said
securities or the specified portions thereof shall be paid and redeemed by Group
at the applicable Redemption Price, together with accrued interest (including
any Additional Interest) to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will 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 3.7.
Upon presentation of any Security redeemed in part only, Group shall
execute and the Trustee shall authenticate and make available for delivery to
the Holder thereof, at the expense of Group, a new Security or Securities of the
same series, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms. If a Global Security is so surrendered,
such new Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
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SECTION 11.7. Right of Redemption of Securities.
Except as otherwise established pursuant to Section 3.1 for the Securities
of a series, Group, at its option, may redeem (A) the Securities of any series,
in whole (but not in part), upon the occurrence and during the continuation of a
Tax Event, at any time within 90 days of the occurrence of such Tax Event, or
(B) the Securities of a series initially issued to a Company, on or after the
date five years after the Original Issue Date of such Securities, in whole at
any time or in part from time to time, in each case at a Redemption Price equal
to 100% of the principal amount thereof.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any sinking fund payment in excess of such minimum amount which is
permitted to be made by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, Group may at its option, at any
time no more than 16 months and no less than 30 days prior to the date on which
such sinking fund payment is due, deliver to the Trustee Securities of such
series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by Group, except Securities of such
series that have been redeemed through the application of mandatory or optional
sinking fund payments pursuant to the terms of the Securities of such series,
accompanied by a Group Order instructing the Trustee to credit such obligations
and stating that the Securities of such series were originally issued by Group
by way of bona fide sale or other negotiation for value; provided that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the redemption price for such Securities, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
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SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, Group will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery Group shall be obligated to make the cash
payment or payments therein referred to, if any, on or before the succeeding
sinking fund payment date. In the case of the failure of Group to deliver such
Officers' Certificate (or, as required by this Indenture, the Securities and
coupons, if any, specified in such Officers' Certificate), the sinking fund
payment due on the succeeding sinking fund payment date for such series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
the Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit securities as provided in Section 12.2
and without the right to make the optional sinking fund payment with respect to
such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by Group if Group is acting as its own Paying Agent) on the sinking fund payment
date on which such payment is made (or, if such payment is made before a sinking
fund payment date, on the sinking fund payment date immediately following the
date of such payment) to the redemption of Securities of such series at the
Redemption Price specified in such Securities with respect to the sinking fund.
Any sinking fund moneys not so applied or allocated by the Trustee (or, if Group
is acting as its own Paying Agent, segregated and held in trust by Group as
provided in Section 10.3) for such series and together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions of
this Section 12.3. Any and all sinking fund moneys with respect to the
Securities of any particular series held by the Trustee (or if Group is acting
as its own Paying Agent, segregated and held in trust as provided in Section
10.3) on the last sinking fund payment date with respect to Securities of such
series and not held for the payment or redemption of particular Securities of
such series shall be applied by the Trustee (or by Group if Group is acting as
its own Paying Agent), together with other moneys, if necessary, to be deposited
(or segregated) sufficient for the purpose, to the payment of the principal of
the Securities of such series at Maturity. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be given
in the name of and at the expense of Group in the manner provided in Section
11.4. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 11.6. On or
before each sinking fund payment date, Group shall pay to the Trustee (or, if
Group is acting as its own Paying Agent, Group shall segregate and hold in trust
as provided in Section 10.3) in cash a sum in the currency in which Securities
of such series are payable (except as provided pursuant to Section 3.1) equal to
the principal and any interest accrued to the Redemption Date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 12.3.
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Neither the Trustee nor Group shall redeem any Securities of a series with
sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund for such series during the continuance
of a default in payment of interest, if any, on any Securities of such series or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series,
except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or Group, if Group is then acting as
its own Paying Agent) shall redeem such Securities if cash sufficient for that
purpose shall be deposited with the Trustee (or segregated by Group) in
accordance with the terms of this Article XII. Except as aforesaid, any moneys
in the sinking fund for such series at the time when any such default or Event
of Default shall occur and any moneys thereafter paid into such sinking fund
shall, during the continuance of such default or Event of Default, be held as
security for the payment of the Securities and coupons, if any, of such series;
provided, however, that in case such default or Event of Default shall have been
cured or waived herein, such moneys shall thereafter be applied on the next
sinking fund payment date for the Securities of such series on which such moneys
may be applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness.
Group covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
In the event that Group shall default in the payment of any principal of
(or premium, if any) or interest on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, upon written notice of
such default to Group by the holders of Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made on
account of the principal of (or premium, if any) or interest on any of the
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceedings relating
to Group, its creditors or its property,
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(b) any proceeding for the liquidation, dissolution or other winding up of
Group, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (c) any assignment by Group for the benefit of creditors
or (d) any other marshalling of the assets of Group (each such event, if any,
herein sometimes referred to as a "Proceeding"), all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder of
any of the Securities on account thereof. Any payment or distribution, whether
in cash, securities or other property (other than securities of Group or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of the Securities
of any series, shall be paid or delivered directly to the holders of Senior
Indebtedness in accordance with the priorities then existing among such holders
until all Senior Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of Group ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of Group the
amounts at the time due and owing on account of unpaid principal of (and
premium, if any) and interest on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
Group ranking junior to the Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of Group or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior Indebtedness shall have been paid in full, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a
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financing statement with respect hereto) as may, in the opinion of counsel
designated by the holders of a majority in principal amount of the Senior
Indebtedness at the time outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of Group in respect of any security
interest the creation of which is not prohibited by the provisions of this
Indenture.
The securing of any obligations of Group, otherwise ranking on a parity
with the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking on
a parity with the Securities or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture, or in any
of the Securities, shall prevent (a) Group at any time, except during the
conditions described in the first paragraph of Section 13.2 or the pendency of
any Proceeding referred to in Section 13.2, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on all
Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of Group which by its express terms is subordinated to
Senior Indebtedness of Group to substantially the same extent as the Securities
are subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior Indebtedness) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among Group, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment or distribution by
Group to or on account of the Senior Indebtedness.
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SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between Group and the Holders of the Securities, the
obligations of Group, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against Group of the Holders of the Securities and creditors of
Group other than their rights in relation to the holders of Senior Indebtedness;
or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of Group or by
any act or failure to act, in good faith, by any such holder, or by any
noncompliance by Group with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against Group and any other Person.
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SECTION 13.8. Notice to Trustee.
Group shall give prompt written notice to the Trustee of any fact known to
Group which would prohibit the making of any payment to or by the Trustee in
respect of the Securities. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof from Group or a holder of
Senior Indebtedness or from any trustee, agent or representative therefor;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any monies may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it within two Business Days prior to
such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or attorney-in-fact therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of Group referred to in this
Article, the Trustee, subject to the provisions of Section 6.1, and the Holders
of the Securities shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of Group, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
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SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to Group or to any other Person cash,
property or securities to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise. With respect to the Holders of
Senior Indebtedness, the Trustee undertakes to perform or to observe only such
of its covenants or obligations as are specifically set forth in this Article
and no implied covenants or obligations with respect to Holders of Senior
Indebtedness shall be read into this Indenture against the Trustee.
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by Group and be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
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* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and Delphi Financial Group, Inc. has caused its corporate seal to
be hereunder affixed and attested, all as of the day and year first above
written.
DELPHI FINANCIAL GROUP, INC.
By: ______________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
WILMINGTON TRUST COMPANY
as Trustee
By: ______________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
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STATE OF )
) : ss.:
COUNTY OF )
On the ___ day of _________, 199_, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he/she is ________________
of Delphi Financial Group, Inc., one of the corporations described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
___________________
Notary Public
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On the ___ day of _________, 199_, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he/she is ________________
of Wilmington Trust Company, one of the corporations described in and which
executed the foregoing instrument; that he/she signed his/her name thereto
pursuant to the bylaws of said Corporation.
___________________
Notary Public
