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EXHIBIT 4.2
AFLAC Incorporated,
as Issuer
and
The Bank of New York,
as Trustee
------------------
INDENTURE
Dated as of April 21, 1999
$450,000,000
6 1/2% Senior Notes
due 2009
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................1
SECTION 1.1. Definitions.........................................................1
SECTION 1.2. Other Definitions..................................................16
SECTION 1.3. Incorporation by Reference of Trust Indenture Act..................17
SECTION 1.4. Compliance Certificates and Opinions...............................17
SECTION 1.5. Form of Documents Delivered to Trustee.............................18
SECTION 1.6. Acts of Holders....................................................18
SECTION 1.7. Notices, Etc., to Trustee and the Issuer...........................20
SECTION 1.8. Notice to Holders; Waiver..........................................20
SECTION 1.9. Conflict of any Provision of Indenture with Trust
Indenture Act....................................................21
SECTION 1.10. Effect of Headings and Table of Contents..........................21
SECTION 1.11. Successors and Assigns............................................21
SECTION 1.12. Severability Clause...............................................21
SECTION 1.13. Benefits of Indenture.............................................21
SECTION 1.14. Governing Law.....................................................21
SECTION 1.15. Legal Holidays....................................................22
SECTION 1.16. No Recourse Against Others........................................22
SECTION 1.17. Submission of Jurisdiction. .....................................22
SECTION 1.18. Currency Indemnity................................................22
ARTICLE II
THE SENIOR NOTES.....................................................................23
SECTION 2.1. Form and Dating....................................................23
SECTION 2.2. Denominations......................................................29
SECTION 2.3. Execution and Authentication.......................................29
SECTION 2.4. Registrar and Paying Agent.........................................30
SECTION 2.5. Paying Agent to Hold Money in Trust................................31
SECTION 2.6. Senior Note Holder Lists...........................................33
SECTION 2.7. Transfer and Exchange..............................................33
SECTION 2.8. Replacement Senior Notes...........................................35
SECTION 2.9. Outstanding Senior Notes...........................................35
SECTION 2.10. Temporary Senior Notes............................................36
SECTION 2.11. Cancellation......................................................36
SECTION 2.12. Defaulted Interest................................................36
SECTION 2.13. Special Transfer Provisions.......................................37
SECTION 2.14. CUSIP and ISIN Numbers............................................40
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ARTICLE III
SATISFACTION AND DISCHARGE...........................................................40
SECTION 3.1. Satisfaction and Discharge of Indenture.............................40
SECTION 3.2. Application of Trust Money..........................................42
ARTICLE IV
DEFAULTS AND REMEDIES................................................................42
SECTION 4.1. Events of Default...................................................42
SECTION 4.2. Acceleration of Maturity; Rescission................................44
SECTION 4.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.............................................
SECTION 4.4. Trustee May File Proofs of Claim....................................46
SECTION 4.5. Trustee May Enforce Claims Without Possession
of Senior Notes...................................................47
SECTION 4.6. Application of Money Collected......................................47
SECTION 4.7. Limitation on Suits.................................................48
SECTION 4.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest...............................................
SECTION 4.9. Restoration of Rights and Remedies..................................49
SECTION 4.10. Rights and Remedies Cumulative......................................49
SECTION 4.11. Delay or Omission Not Waiver........................................49
SECTION 4.12. Control by Holders..................................................49
SECTION 4.13. Waiver of Defaults..................................................50
SECTION 4.14. Undertaking for Costs...............................................50
ARTICLE V
THE TRUSTEE..........................................................................51
SECTION 5.1. Notice of Events of Default.........................................51
SECTION 5.2. Certain Rights of Trustee...........................................51
SECTION 5.3. Not Responsible for Recitals or Issuance of Senior Notes............54
SECTION 5.4. Trustee and Agents May Hold Senior Notes;
Collections; Etc..................................................54
SECTION 5.5. Money Held in Trust.................................................54
SECTION 5.6. Compensation and Reimbursement......................................54
SECTION 5.7. Conflicting Interests...............................................55
SECTION 5.8. Corporate Trustee Required; Eligibility.............................55
SECTION 5.9. Resignation and Removal; Appointment of Successor...................56
SECTION 5.10. Acceptance of Appointment of Successor..............................58
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business............................................58
SECTION 5.12. Preferential Collection of Claims Against the Issuer................59
SECTION 5.13. Trustee's Application for Instructions from the Company.............59
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ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE................................................59
SECTION 6.1. Disclosure of Names and Addresses of Holders........................59
SECTION 6.2. Reports by Trustee..................................................59
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.................................60
SECTION 7.1. Issuer May Consolidate, Etc., Only on Certain Terms.................60
SECTION 7.2. Successor Substituted...............................................61
ARTICLE VIII
SUPPLEMENTAL INDENTURES..............................................................61
SECTION 8.1. Supplemental Indentures Without Consent of Holders..................61
SECTION 8.2. Supplemental Indentures with Consent of Holders.....................62
SECTION 8.3. Execution of Supplemental Indentures................................63
SECTION 8.4. Effect of Supplemental Indentures...................................63
SECTION 8.5. Conformity with Trust Indenture Act.................................63
SECTION 8.6. Reference in Senior Notes to Supplemental Indentures................63
ARTICLE IX
COVENANTS............................................................................64
SECTION 9.1. Payment of Principal, Premium and Interest..........................64
SECTION 9.2. Corporate Existence.................................................64
SECTION 9.3. Payment of Taxes and Other Claims...................................65
SECTION 9.4. Maintenance of Properties; Insurance; Books and
Records; Compliance with Law......................................65
SECTION 9.5. Liens...............................................................66
SECTION 9.6. Statement as to Compliance; Notice of Default;
Provision of Financial Statements.................................66
SECTION 9.7. Waiver of Stay; Extension of Usury Law..............................67
SECTION 9.8. Waiver of Certain Covenants.........................................67
ARTICLE X
REDEMPTION OF SENIOR NOTES...........................................................68
SECTION 10.1. Right of Redemption................................................68
SECTION 10.2. Applicability of Article. .........................................68
SECTION 10.3. Election to Redeem; Notice to Trustee..............................68
SECTION 10.4. Selection by Trustee of Senior Notes to Be Redeemed................68
SECTION 10.5. Notice of Redemption...............................................69
SECTION 10.6. Deposit of Redemption Price........................................70
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SECTION 10.7. Senior Notes Payable on Redemption Date............................70
SECTION 10.8. Senior Notes Redeemed in Part......................................71
SECTION 10.9. Optional Redemption................................................71
ARTICLE XI
DEFEASANCE AND COVENANT DEFEASANCE...................................................72
SECTION 11.1. Option to Effect Defeasance or Covenant Defeasance.................72
SECTION 11.2. Defeasance and Discharge...........................................72
SECTION 11.3. Covenant Defeasance................................................72
SECTION 11.4. Conditions to Defeasance or Covenant Defeasance....................73
SECTION 11.5. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.................75
SECTION 11.6. Reinstatement......................................................75
EXHIBITS
Exhibit A Form of U.S. Global Senior Note
Exhibit B Form of Reg S Global Senior Note
Exhibit C Form of Certificated Senior Note
Exhibit D Form of Institutional Accredited Investor Transfer Certificate
Exhibit E Form of Regulation S Transfer Certificate
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INDENTURE, dated as of April 21, 1999, between AFLAC Incorporated, a
Georgia corporation (hereinafter called the "ISSUER"), and The Bank of New York,
a New York banking corporation, as trustee (hereinafter called the "TRUSTEE").
RECITALS
WHEREAS, the Issuer has duly authorized the issue of its 6 1/2% Senior
Notes due 2009 in an aggregate principal amount not to exceed $450,000,000, and
to provide the terms and conditions upon which the Senior Notes (as defined
herein) are to be authenticated, issued and delivered; and the Issuer has duly
authorized the execution and delivery of this Indenture;
WHEREAS, upon issuance of the Exchange Notes (as defined herein), if any,
or upon the effectiveness of the Shelf Registration Statement (as defined
herein) filed with respect to the Senior Notes, this Indenture will be subject
to, and shall be governed by, the provisions of the Trust Indenture Act (as
defined herein) that are required to be part of and govern indentures qualified
under the Trust Indenture Act; and
WHEREAS, all acts and things necessary have been done to make the Senior
Notes, when executed by the Issuer and authenticated and delivered hereunder and
duly issued by the Issuer, the valid, binding and legal obligations of the
Issuer, and to make this Indenture a valid agreement of the Issuer in accordance
with its terms;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes by the Holders (as defined herein) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
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(a) the terms defined in this Article I have the meanings assigned to them
in this Article I and include the plural as well as the singular;
(b) 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;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(d) 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;
(e) all references to "$" or "DOLLARS" shall refer to the lawful currency
of the United States of America;
(f) the words "INCLUDE," "INCLUDED" and "INCLUDING" as used herein shall be
deemed in each case to be followed by the phrase "WITHOUT LIMITATION", if not
expressly followed by such phrase or the phrase "BUT NOT LIMITED TO"; and
(g) any reference to a Section or Article refers to such Section or Article
of this Indenture unless otherwise indicated.
Certain terms used principally in Articles II, IX, and XI are defined in
those Articles.
"ADDITIONAL INTEREST" means, as of any date of determination, all
additional interest then owing pursuant to the Registration Rights Agreement.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date, calculated on the third
Business Day preceding the Redemption Date, plus in each case 25 basis points.
"AFFILIATE" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common
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control with such specified Person (except in cases where substantially all of
the control that would ordinarily be exercisable by virtue of ownership of
stock, other than the election of directors, has been eliminated by applicable
regulatory authorities). 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 Stock, by contract or otherwise; and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the foregoing.
"BOARD OF DIRECTORS" means the board of directors of the Issuer or any duly
authorized committee of such board.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the City of New York are
authorized or obligated by law, regulation or executive order to close.
"CAPITAL LEASE OBLIGATION" means, as to any Person, any obligation of such
Person and its subsidiaries on a consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"CAPITAL STOCK" of any Person means any and all shares, interests,
participation or other equivalent (however designated) of such Person's capital
stock and any rights (other than debt securities convertible into or
exchangeable for capital stock), warrants or options to purchase the foregoing
whether now outstanding or issued after the date hereof.
"CEDEL" means Cedel Bank, societe anonyme.
"CERTIFICATED SENIOR NOTE" means any Senior Note substantially in the form
of Exhibit C to this Indenture issued in accordance with this Indenture.
"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
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execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term from the Redemption Date to the Stated Maturity of the Senior Notes that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Senior Notes.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "COMPOSITE 3:30 P.M. QUOTATIONS FOR U.S.
GOVERNMENT SECURITIES" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Quotation Agent obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such quotations.
"CONSOLIDATED NET WORTH" of any Person means the consolidated stockholders'
equity of such Person and its subsidiaries as determined in accordance with
GAAP.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 000
Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate Trust
Administration.
"CORPORATION" includes corporations, associations, partnerships, companies
and business trusts.
"CURRENCY AGREEMENT" means any currency swap agreements, forward exchange
rate agreements, foreign currency futures or options, exchange rate collar
agreements, exchange rate insurance or other similar agreements or arrangements,
or
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combinations thereof, principally designed to protect a Person or any of its
subsidiaries against fluctuations in currency values. A Currency Agreement may
also include an Interest Swap Obligation.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DTC" means The Depository Trust Company, its nominees and their respective
successors.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Article IV.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means an issue of senior notes of the Issuer with terms
identical to the Global Senior Notes (except that the Exchange Notes will not
bear the Private Placement Legend or any other legends restricting the transfer
thereof, will contain the alternative paragraph 1(b) appearing on the reverse of
the Global Senior Notes and except that interest thereon shall accrue from the
last date on which interest was paid on the Global Senior Notes or, if no such
interest has been paid, from the date of issuance of the Global Senior Notes) to
be exchanged for the Global Senior Notes and the Certificated Senior Notes
pursuant to the Exchange Offer.
"EXCHANGE OFFER" means the registered offer by the Issuer to exchange the
Global Senior Notes and the Certificated Senior Notes for the Exchange Notes
pursuant to the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the registration statement
relating to an Exchange Offer on an appropriate form and all amendments and
supplements to such registration statement, in each case including the
prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
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"EXCHANGE REGISTRATION" means a registration of the Exchange Notes by the
Issuer under the Securities Act pursuant to and in accordance with the terms of
the Registration Rights Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or property, the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy.
"FEDERAL BANKRUPTCY CODE" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"GAAP" means generally accepted accounting principles in the United States,
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants ("AICPA") and
statements and pronouncements of the Financial Accounting Standards Board
("FASB") or in such other statements by such other entity as may be approved by
a significant segment of the accounting profession, consistently applied except
for accounting changes required by the AICPA, FASB or the Commission, as in
effect from time to time.
"GLOBAL SENIOR NOTES" means, collectively, the U.S. Global Senior Note and
the Reg S Global Senior Note substantially in the forms of Exhibit A and Exhibit
B to this Indenture.
"GUARANTEED DEBT" of any Person means, without duplication, all
Indebtedness of any other Person guaranteed directly or indirectly in any manner
by such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement: (1) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (2) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling such other Person to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (3) to
supply funds to, or in any other manner invest in, such other Person (including
any agreement to pay for property or services to be acquired by such other
Person irrespective of whether such property is received or such services are
rendered), (4) to maintain working capital or equity capital of such other
Person, or otherwise to maintain the net worth, solvency or other financial
condition of the debtor, or (5) otherwise to assure a creditor of such other
Person against loss; provided that the term "GUARANTEE" shall not include
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endorsements for collection or deposit, in either case in the ordinary course of
business, or any obligation or liability of such other Person in respect of
leasehold interests assigned by such other Person to any other Person.
"HOLDER" means the Person in whose name a Senior Note is registered.
"INDEBTEDNESS" means, with respect to any Person, without duplication, (1)
all obligations of such Person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables and other accrued
current liabilities incurred in the ordinary course of business, if, and to the
extent, any of the foregoing would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP, (2) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, if, and to
the extent, any of the foregoing would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, (3) all obligations
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business, (4) all Capital
Lease Obligations of such Person, (5) all obligations referred to in (but not
excluded from) clause (1), (2), (3) or (4) above of other Persons and all
dividends of other Persons, the payment of which is secured by (or for which the
holder of such obligations has an existing right, contingent or otherwise, to be
secured by) any Lien, upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such obligations, (6) all
Guaranteed Debt of such Person, (7) all Redeemable Capital Stock issued by such
Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends, (8) all obligations under
Currency Agreements or Interest Swap Obligations of such Person, (9) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction (other than obligations with
respect to letters of credit securing insurance obligations entered into in the
ordinary course of business of such Person to the extent that such letters of
credit are not drawn upon, or if and to the extent drawn upon, such drawing is
reimbursed not later than the 30th Business Day following a demand for
reimbursement following payment on the letter of credit), and (10) any
amendment, supplement, modification, deferral, renewal, extension or refunding
of any liability of the types referred to in clauses (1) through (9) above.
Indebtedness shall not include obligations under insurance, reinsurance or
retrocession contracts entered
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into in the ordinary course of business. For purposes hereof, the "MAXIMUM FIXED
REPURCHASE PRICE" of any Redeemable Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock.
"INDENTURE" means this instrument as originally executed (including all
exhibits and schedules hereto) and 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.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) and (7) under the Securities
Act.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Senior Notes.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person pursuant to
any interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement or arrangement principally designed
to protect such Person or any of its subsidiaries against fluctuations in
interest rates.
"ISSUE DATE" means the date on which Senior Notes are originally issued
under this Indenture.
"ISSUER" means the Person named as the "ISSUER" in the first paragraph of
this instrument, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "ISSUER" shall mean such
successor Person. To the extent necessary to comply with the requirements of the
provisions of Sections 310 through 317 of the Trust Indenture Act as they are
applicable to the Issuer, the term "ISSUER" shall include any other obligor with
respect to the Senior Notes for the purposes of complying with such provisions.
"LIEN" means any mortgage, charge, pledge, security interest, lien or other
encumbrance of any kind.
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"MAKE-WHOLE AMOUNT" means, in connection with any optional redemption of
any Senior Notes, the excess, if any, of (i) the sum, as determined by a
Quotation Agent of the present values of the principal amount of such Senior
Notes, together with scheduled payments of interest from the Redemption Date to
the Stated Maturity of the Senior Notes, in each case discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, over (ii) 100% of the
principal amount of the Senior Notes to be redeemed.
"MATURITY" when used with respect to any Senior Note means the date on
which the principal of, and premium and Additional Interest, if any, and
interest on such Senior Note becomes due and payable as therein provided,
whether at Stated Maturity or Redemption Date and whether by declaration of
acceleration, call for redemption or otherwise.
"XXXXXXX XXXXX" means Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated.
"NON-U.S. PERSON" means a person who is not a "U.S. person" (as defined in
Regulation S).
"OFFICERS' CERTIFICATE" means a certificate signed by: (1) the Chairman, a
Vice Chairman, the President, a Vice President, the Treasurer or a director (or
equivalent officers) of the Issuer, and (2) the Secretary or an Assistant
Secretary of the Issuer and delivered to the Trustee; provided, however, that
such certificate may be signed by two of the officers or directors listed in
clause (1) above in lieu of being signed by one of such officers or directors
listed in such clause (1) and one of the officers listed in clause (2) above.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Issuer. Such opinion shall include the statements provided for in
Section 314(e) of the Trust Indenture Act to the extent applicable.
"ORDER" means a written order signed in the name of the Issuer: (1) by its
Chairman, a Vice Chairman, its President, a Vice President, its Treasurer or a
director (or equivalent officers), and (2) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or
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directors listed in clause (1) above in lieu of being signed by one of such
officers or directors listed in such clause (1) and one of the officers listed
in clause (2) above.
"OUTSTANDING" when used with respect to the Senior Notes means, as of the
date of determination, all Senior Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Senior Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Senior Notes, or portions thereof, for which payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Issuer) in trust or
set aside and segregated in trust by the Issuer (if the Issuer shall act as
its own Paying Agent) for the Holders of such Senior Notes; provided that,
if such Senior Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Senior Notes, except to the extent provided in Section 11.2 and
Section 11.3, with respect to which the Issuer has effected defeasance or
covenant defeasance as provided in Article XI; and
(iv) Senior Notes in exchange for or in lieu of which other Senior
Notes have been authenticated and delivered pursuant to this Indenture,
other than any such Senior Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Senior Notes
are held by a bona fide purchaser in whose hands the Senior Notes are valid
obligations of the Issuer whose determination shall be conclusive;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Senior Notes have given any request, demand,
authorization, notice, direction, consent or waiver hereunder, Senior Notes
owned by the Issuer, any other obligor upon the Senior Notes or any Affiliate of
the Issuer or such other obligor shall be disregarded and deemed not to be
Outstanding solely for purposes of such determination, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, notice, direction, consent or waiver, only
Senior Notes which a Responsible Officer of the Trustee
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actually knows to be so owned shall be so disregarded. Senior Notes so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Senior Notes and that the pledgee is not the Issuer or
any other obligor upon the Senior Notes or any Affiliate of the Issuer or such
other obligor.
"PERMITTED LIENS" means: (1) Liens securing Indebtedness pursuant to any
senior credit agreement or senior credit facility of the Issuer or any
Subsidiary existing on the date of the Indenture as such agreement may be
supplemented, extended, renewed, replaced or otherwise modified from time to
time, and any refinancing, replacement or substitution thereof; (2) Liens in
favor of the Issuer or any Subsidiary; (3) Liens on property of a Person
existing at the time such Person is merged into or consolidated with the Issuer
or any Subsidiary; provided that such Liens were not incurred in connection
with, or in contemplation of, such merger or consolidation and such Liens do not
extend to any assets of the Issuer or any Subsidiary other than the assets of
the Person so merged into or consolidated with the Issuer or such Subsidiary;
(4) Liens on property existing at the time of acquisition thereof by the Issuer
or any Subsidiary; provided that such Liens were not incurred in connection
with, or in contemplation of, such acquisition and do not extend to any assets
of the Issuer or any of the Subsidiaries other than the property so acquired;
(5) Liens incurred or deposits required to secure the performance of United
States or foreign statutory obligations (including insurance regulations),
tenders, surety or appeal bonds or performance or return of money bonds or
similar obligations, or landlords', carriers', warehousemen's, mechanics',
suppliers', materialmen's or other like Liens, in any case incurred in the
ordinary course of business; (6) Liens required by any United States, state or
foreign authority pursuant to applicable insurance regulations; (7) Liens
existing on the date of the Indenture; (8) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (9)
Liens to secure Capital Lease Obligations or operating leases; (10) judgment and
attachment Liens not giving rise to an Event of Default; (11) Liens with respect
to obligations under Currency Agreements or Interest Swap Obligations of the
Issuer or any Subsidiary; (12) Liens incurred in the ordinary course of business
of the Issuer or any Subsidiary other than in connection with Indebtedness for
borrowed money; (13) purchase money Liens to finance property or assets of the
Issuer or any Subsidiary acquired in the ordinary course of business; provided,
however, that (a) the related purchase money Indebtedness shall not be secured
by any property or assets of the
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Issuer or any Subsidiary other than the property and assets so acquired, and (b)
the Lien securing such Indebtedness shall be created within 90 days of such
acquisition; (14) Liens on assets of the Subsidiaries to secure obligations of
such Subsidiaries to the Issuer; (15) Liens in favor of collecting or payor
banks having a right of setoff, revocation, refund or chargeback with respect to
money or instruments of the Issuer or any Subsidiary on deposit with or in
possession of such bank; (16) Liens attributable to sale and leaseback
transactions that collectively do not exceed 30% of the total assets of the
Issuer; (17) easements, covenants, zoning restrictions, rights-of-way or other
similar changes or encumbrances not interfering in any material respect with the
ordinary conduct of the business of the Issuer or any Subsidiary; (18) Liens
securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit;
(19) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the Issuer or
any Subsidiary, including rights of offset and set-off; (20) leases or subleases
granted to others that do not materially interfere with the ordinary course of
business of the Issuer and the Subsidiaries; and (21) any Lien extending,
renewing or replacing, in whole or in part, any Permitted Lien; provided that
any such Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in respect
thereof) that secured (or, under the written arrangements under which the
original Lien arose, could secure) the Indebtedness being refinanced or is in
respect of property that is the security for a Permitted Lien hereunder.
"PERSON" means any individual, corporation, limited or general partnership,
limited liability company, joint venture, association, joint stock company,
trust, fund, unincorporated organization or government or any agency or
political subdivision thereof.
"PRINCIPAL SUBSIDIARY" means: (i) the insurance company Subsidiaries in
existence on the Issue Date; (ii) any other insurance company Subsidiary that
becomes a "SIGNIFICANT SUBSIDIARY" as defined in Regulation S-X as promulgated
by the Commission; and (iii) any other insurance company Subsidiary that may
succeed, by merger, consolidation or otherwise, to all or substantially all of
the business of one or more of such Persons as specified in (i) and (ii) above.
"QUALIFIED INSTITUTIONAL BUYER" OR "QIB" means a "qualified institutional
buyer" as defined in Rule 144A.
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"QUOTATION AGENT" means the Reference Treasury Dealer appointed by the
Issuer.
"REDEEMABLE CAPITAL STOCK" means any Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, is, or upon the happening of an event or passage of time would be
required to be, redeemed on or prior to the final Stated Maturity of the Senior
Notes or is redeemable at the option of the holder thereof at any time prior to
such final Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity.
"REDEMPTION DATE", when used with respect to any Senior Notes to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Senior Notes to be
redeemed, means the price at which they are to be redeemed pursuant to this
Indenture.
"REFERENCE TREASURY DEALER" means, at any time, (i) Xxxxxxx Xxxxx and its
respective successors and two additional Primary Treasury Dealers selected by
the Issuer; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "PRIMARY TREASURY
DEALER"), the Issuer will substitute therefor another Primary Treasury Dealer;
and (ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Issuer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Quotation Agent at 5:00 p.m., New York City time,
on the third Business Day preceding such Redemption Date.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of the date hereof, between the Issuer, Xxxxxxx Lynch, Donaldson,
Lufkin & Xxxxxxxx, First Union Capital Markets Corp., NationsBanc Xxxxxxxxxx
Securities LLC and Xxxxxxx Xxxxx Xxxxxx Inc.
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"REGISTRATION STATEMENT" means the Registration Statement as defined and
described in the Registration Rights Agreement.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
means the April 1 or October 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"REGULATION S" means Regulation S under the Securities Act.
"REG S CERTIFICATED SENIOR NOTE" means a Certificated Senior Note issued in
exchange for an interest in the Reg S Global Senior Note.
"REG S GLOBAL SENIOR NOTE" means the Reg S Global Senior Note substantially
in the form of Exhibit B to this Indenture.
"REQUEST" means a written request signed in the name of the Issuer (1) by
its Chairman, a Vice Chairman, its President, a Vice President, its Treasurer or
a director (or equivalent officers), and (2) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (1) above in lieu of being signed
by one of such officers or directors listed in such clause (1) and one of the
officers listed in clause (2) above.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer assigned to the Corporate Trust Office of the Trustee or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers or assigned by the Trustee to
administer corporate trust matters at its Corporate Trust Office and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR NOTES" means (a) the Global Senior Notes, substantially in the form
of Exhibit A and Exhibit B to this Indenture, (b) the Certificated Senior Notes,
substantially in the form of Exhibit C to this Indenture, issued in accordance
with this Indenture and (c) any Exchange Notes to be issued and exchanged for
(a) or
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(b) above pursuant to the Registration Rights Agreement and this Indenture. For
purposes of this Indenture, all Senior Notes shall vote together as one series
of Senior Notes under this Indenture.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SPECIAL RECORD DATE" means a date fixed by the Trustee for the payment of
any Defaulted Interest.
"STATED MATURITY" means, when used with respect to any Indebtedness or any
installment of principal or of interest thereon, the date specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of principal or of interest is due and payable.
"SUBSIDIARY" means any Person, a majority of the equity ownership or the
Voting Stock of which is at the time owned, directly or indirectly, by the
Issuer or by one or more other Subsidiaries, or by the Issuer and one or more
other Subsidiaries.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this Indenture was executed, except as
provided in Section 8.5.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first paragraph of
this Indenture, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "TRUSTEE" shall mean
such successor Trustee.
"U.S. CERTIFICATED SENIOR NOTE" means a Certificated Senior Note issued in
exchange for an interest in the U.S. Global Senior Note.
"U.S. GLOBAL SENIOR NOTE" means the U.S. Global Senior Note substantially
in the form of Exhibit A to this Indenture.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the
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timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"VOTING STOCK" means stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
SECTION 1.2. Other Definitions
Defined in
Term Section
-----------------------------------------------------------------------
"ACT" .................................................... 1.6
"COVENANT DEFEASANCE" .................................... 11.3
"DEFAULTED INTEREST" ..................................... 2.12
"DEFEASANCE" ............................................. 11.2
"DIRECT PARTICIPANT"...................................... 2.1
"DISTRIBUTION COMPLIANCE PERIOD".......................... 2.1
"INCORPORATED PROVISION" ................................. 1.9
"INDIRECT PARTICIPANTS"................................... 2.1
"NOTICE OF DEFAULT" ...................................... 4.1
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"PAYING AGENT" ........................................ 2.4
"PRIVATE PLACEMENT LEGEND" ............................ 2.1
"REGISTER" ............................................ 2.6
"REGISTRAR" ........................................... 2.4
"RESALE RESTRICTION TERMINATION DATE".................. 2.13
"RESTRICTIVE LEGEND"................................... 2.13
"SURVIVING ENTITY" .................................... 7.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporation by reference in and made a part of this Indenture. All Trust
Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
shall have the meanings assigned to them therein.
SECTION 1.4. Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition precedent)
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion (other than the certificates required by
Section 9.6(a)) with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
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(b) 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;
(c) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.5. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which the
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer stating that the information with respect to such factual matters is in
the possession of the Issuer, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
When 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 1.6. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this
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Indenture to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such request, demand, authorization, direction, notice,
consent, waiver or other action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the request,
demand, authorization, direction, notice, consent, waiver or other action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Certificated Senior Notes shall be proved by the
Register.
(d) If the Issuer shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Issuer may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Issuer shall have no obligation to do so. Notwithstanding Section 316(c) of the
Trust Indenture Act, any such record date shall be the record date specified in
or pursuant to such Board Resolution, which shall be a date not more than 30
days prior to the first solicitation of Holders generally in connection
therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Senior Notes then outstanding
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the Senior
Notes then outstanding
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shall be computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Senior Notes shall bind every future Holder of
the same Senior Notes or the Holder of every Senior Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Senior Notes.
SECTION 1.7. Notices, Etc., to Trustee and the Issuer. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(a) the Trustee by any Holders or any representative of the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or delivered in
writing or mailed, first-class postage prepaid, or by facsimile, to or with the
Trustee at its Corporate Trust Office; or
(b) the Issuer by the Trustee or any representative of any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or delivered in writing or mailed,
first-class postage prepaid, or by facsimile, to the Issuer at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Corporate Secretary, facsimile number
(000) 000-0000; or at any other address or facsimile number furnished in writing
to the Trustee by the Issuer.
SECTION 1.8. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event at his address as it
appears in the Register or at the address provided by such Holder in writing to
the Trustee not later than the latest date and not earlier than the earliest
date prescribed for the giving of such notice. When notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall
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affect the sufficiency of such notice with respect to other Holders. Any notice
when mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to mail notice of any event as
required by any provisions of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 1.9. Conflict of any Provision of Indenture with Trust Indenture
Act. If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 318 of the Trust
Indenture Act, inclusive, or conflicts with any provision (an "INCORPORATED
PROVISION") required by or deemed to be included in this Indenture by operation
of such Trust Indenture Act sections, such imposed duties or incorporated
provision of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, such provision of the Trust Indenture Act shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be, if this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 1.10. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.11. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer and the Trustee shall bind each of their respective
successors and assigns, whether so expressed or not.
SECTION 1.12. Severability Clause. In case any provision in this Indenture
or in the Senior Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
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SECTION 1.13. Benefits of Indenture. Nothing in this Indenture or in the
Senior Notes, express or implied, shall give to any Person (other than the
parties hereto and their successors hereunder, any Paying Agent or Registrar and
their successors hereunder, and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.14. Governing Law. This Indenture and the Senior Notes shall be
governed by and construed in accordance with the laws of the State of New York.
Upon the issuance of Exchange Notes, if any, or the effectiveness of the Shelf
Registration Statement, this Indenture will be subject to the provisions of the
Trust Indenture Act that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 1.15. Legal Holidays. In any case where any Interest Payment Date,
any date established for payment of Defaulted Interest pursuant to Section 2.12
or any Maturity with respect to any Senior Note shall not be a Business Day,
then (notwithstanding any other provisions of this Indenture or of the Senior
Notes) payment of the principal of, premium and Additional Interest, if any, or
interest on the Senior Notes need not be made on such date but may be made on
the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or date established for payment of Defaulted Interest
pursuant to Section 2.12 or Maturity, and no interest shall accrue with respect
to such payment for the period from and after such Interest Payment Date or date
established for payment of Defaulted Interest pursuant to Section 2.12 or
Maturity, as the case may be, to the next succeeding Business Day.
SECTION 1.16. No Recourse Against Others. No director, officer, employee or
stockholder, as such, of the Issuer or any Subsidiary shall have any liability
for any payment of the principal of, premium or Additional Interest, if any, or
interest on, any of the Senior Notes, or any other obligations of the Issuer
under the Senior Notes or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. Each Holder by accepting
any of the Senior Notes waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Senior Notes.
SECTION 1.17. Submission of Jurisdiction. Each of the parties hereby
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan, the City of New York, in respect of any legal
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action or proceeding against it with respect to its obligations under this
Indenture and/or the Senior Notes.
SECTION 1.18. Currency Indemnity. U.S. dollars are the sole currency of
account and payment for all sums payable by the Issuer under or in connection
with the Senior Notes, including damages. Any amount received or recovered in a
currency other than dollars (whether as a result of, or of the enforcement of,
a judgment or order of a court of any jurisdiction, in the winding-up or
dissolution of the Issuer or otherwise) by any Holder in respect of any sum
expressed to be due to it from the Issuer shall only constitute a discharge to
the Issuer to the extent of the dollar amount which the recipient is able to
purchase with the amount so received or recovered in that other currency on the
date of that receipt or recovery (or, if it is not practicable to make that
purchase on that date, on the first date on which it is practicable to do so).
If that dollar amount is less than the dollar amount expressed to be due to the
recipient under any Senior Note, the Issuer shall indemnify the recipient
against any loss sustained by it as a result. In any event, the Issuer shall
indemnify the recipient against the cost of making any such purchase. For the
purposes of this Section 1.18, it will be sufficient for the Holder to certify
in a satisfactory manner (indicating the sources of information used) that it
would have suffered a loss had an actual purchase of dollars been made with the
amount so received in that other currency on the date of receipt or recovery
(or, if a purchase of dollars on such date had not been practicable, on the
first date on which it would have been practicable, it being required that the
need for a change of date be certified in the manner mentioned above). These
indemnities constitute a separate and independent obligation from the Issuer's
other obligations, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted by any Holder and
shall continue in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under any
Senior Note.
ARTICLE II
THE SENIOR NOTES
SECTION 2.1. Form and Dating. (a)(i) The Global Senior Notes shall be
substantially in the form of Exhibit A and Exhibit B, and the Trustee's
certificate of authentication shall be substantially in the form set forth in
such
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exhibits, which are hereby incorporated in and expressly made a part of this
Indenture and (ii) the Certificated Senior Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit C, which is
hereby incorporated in and expressly made a part of this Indenture; provided
that with respect to clauses (i) and (ii) above, Exchange Notes (A) shall
contain the alternative Paragraph 1(b) appearing on the reverse of the Senior
Notes, and (B) shall not contain the Private Placement Legend or any other
legends restricting the transfer thereof. The Global Senior Notes and the
Certificated Senior Notes may have notations, legends or endorsements required
by law, governmental rule or regulation, stock or other securities exchange
rule, depositary rule or usage agreements to which the Issuer is subject, if
any, or usage (provided that any such notation, legend or endorsement is
approved by the Issuer). The Issuer shall furnish any such legend not contained
in Exhibit A, Exhibit B or Exhibit C to the Trustee in writing. Each Senior Note
shall be dated the date of its authentication.
The terms and provisions contained in the Senior Notes shall constitute,
and are hereby expressly made, a part of this Indenture, and the Issuer and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
The Senior Notes sold to QIBs in the United States initially will be in the
form of one or more registered global notes without interest coupons
substantially in the form set forth in Exhibit A (collectively, the "U.S. GLOBAL
SENIOR NOTE"). Upon issuance, the U.S. Global Senior Note will be deposited with
the Trustee, as custodian for DTC, in New York, New York, and registered in the
name of DTC or its nominee, in each case for credit to the accounts of DTC's
participating organizations (the "DIRECT PARTICIPANTS") and other entities that
clear through or maintain a direct or indirect relationship with a Direct
Participant (the "INDIRECT PARTICIPANTS").
The Senior Notes being offered and sold in offshore transactions in
reliance on Regulation S, if any, initially will be in the form of one or more
registered, global notes without interest coupons substantially in the form set
forth in Exhibit B (collectively, the "REG S GLOBAL SENIOR NOTE"). The Reg S
Global Senior Note will be deposited with the Trustee, as custodian for DTC, in
New York, New York, and registered in the name of a nominee of DTC for credit to
the accounts of Indirect Participants at Euroclear and Cedel. During the 40-day
period commencing on the day after the later of the offering date and the
original Issue Date of the Senior Notes (the "DISTRIBUTION COMPLIANCE PERIOD"),
beneficial interests in
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the Reg S Global Senior Note may be held only through the DTC participants for
Euroclear or Cedel.
The Global Senior Notes may be transferred, in whole and not in part,
only to another nominee of DTC or to a successor of DTC or its nominee in
certain limited circumstances provided for in this Indenture. Beneficial
interests in the Global Senior Notes may be exchanged for Senior Notes in
certificated form in certain limited circumstances provided for in this
Indenture.
(b) Restrictive Legends.
(i) Private Placement Legend. Unless and until a Global Senior Note or a
Certificated Senior Note is exchanged for an Exchange Note in an Exchange
Offer in connection with an effective Exchange Registration or is
registered in accordance with the Shelf Registration Statement, each
pursuant to the Registration Rights Agreement, the U.S. Global Senior Note,
and each U.S. Certificated Senior Note, unless the Issuer determines
otherwise in compliance with applicable law, shall bear the following
legend (the "PRIVATE PLACEMENT LEGEND") on the face thereof:
THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SENIOR NOTE NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SENIOR NOTE BY ITS ACCEPTANCE HEREOF AGREES, ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SENIOR NOTES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SENIOR NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON
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WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
SENIOR NOTE (OR ANY PREDECESSOR OF SUCH SENIOR NOTE), ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SENIOR NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SENIOR NOTE FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF
SENIOR NOTES, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO CLAUSE
(E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER
FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A TO THE
OFFERING MEMORANDUM DATED APRIL 16, 1999. THIS LEGEND WILL BE REMOVED
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UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
(ii) Regulation S Legend. The Reg S Global Senior Note and the Reg S
Certificated Senior Note shall bear the following legend on the face
thereof until the end of the Distribution Compliance Period (the
"Regulation S Legend"):
THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT
IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.
PERSON AND IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION
S"), (2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SENIOR NOTE, PRIOR TO THE DATE WHICH IS 40 DAYS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SENIOR
NOTE (OR ANY PREDECESSOR OF SUCH SENIOR NOTE), ONLY (A) TO THE ISSUER,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SENIOR
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED
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STATES WITHIN THE MEANING OF REGULATION S, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SENIOR NOTE FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SENIOR NOTES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A TO
THE OFFERING MEMORANDUM DATED APRIL 16, 1999. THIS LEGEND WILL BE
REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER
OF (A) THE DAY ON WHICH THE SENIOR NOTES ARE OFFERED TO PERSONS OTHER
THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE
CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S.
(iii) Global Senior Note Legend. Each Global Senior Note shall bear a
legend in substantially the following form:
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR
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REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SENIOR NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS SENIOR NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS SENIOR NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
SECTION 2.2. Denominations. The Senior Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof; provided that Senior Notes transferred to an
Institutional Accredited Investor that delivers a letter from the transferee
substantially in the form of Exhibit D pursuant to Section 2.13 shall be
issuable only in registered form without coupons and only in denominations of
$250,000 and any integral multiple of $1,000 in excess thereof.
SECTION 2.3. Execution and Authentication. Two directors, or a
director and the Secretary or Assistant Secretary, shall sign the Senior Notes
for the Issuer by manual or facsimile signature. The signatures required hereby
may in each case be the manual signature of any person duly delegated by a
director or the Secretary or Assistant Secretary, as the case may be. The
Issuer's seal shall be reproduced on the Senior Notes and may be in facsimile
form.
If an officer (including a director, Secretary or Assistant Secretary)
whose signature is on a Senior Note no longer holds that office at the time the
Trustee authenticates the Senior Note, such Senior Note shall be valid
nevertheless.
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A Senior Note shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Senior Note. The
signature shall be conclusive evidence that such Senior Note has been
authenticated under this Indenture.
The Trustee shall authenticate and deliver the (a) Global Senior Notes
for original issue in an aggregate principal amount at maturity not in excess of
$450,000,000, and (b) Exchange Notes for issue only in an Exchange Offer
pursuant to the Registration Rights Agreement, for a like principal amount of
Global Senior Notes exchanged pursuant thereto, in each case upon a written
order signed by a director or Secretary or Assistant Secretary of the Issuer.
Such order shall specify the principal amount of the Global Senior Notes to be
authenticated and the date on which the original issue of the Global Senior
Notes are to be authenticated and shall further provide instructions concerning
delivery of the Global Senior Notes. The aggregate principal amount of Senior
Notes outstanding at any time may not exceed $450,000,000, except as provided in
Section 2.8 hereof. Each Global Senior Note shall be dated the date of its
authentication, shall bear interest from the applicable date and shall be
payable on the dates specified on the face of the form of Global Senior Notes
set forth as Exhibit A and Exhibit B hereto. Each Certificated Senior Note shall
be dated the date of its authentication, shall bear interest from the applicable
date and shall be payable on the dates specified on the face of the form of
Certificated Senior Note set forth in Exhibit C hereto.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Issuer to authenticate the Senior Notes. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Senior Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar or Paying Agent.
SECTION 2.4. Registrar and Paying Agent. The Issuer will maintain in
the City of New York an office or agency where Senior Notes may be presented or
surrendered for payment (the "PAYING AGENT"), where Senior Notes may be
surrendered for registration of transfer or exchange (the "REGISTRAR") and where
notices and demands to or upon the Issuer in respect of the Senior Notes and
this Indenture may be served. The Registrar shall keep a Register of the Senior
Notes and of their transfer and exchange. Until otherwise designated by the
Issuer, such office or agency in the City of New York shall be the office
maintained by the Trustee for such purpose. The Issuer will give prompt written
notice to the Trustee
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of any change in the location of any such office or agency. If at any time the
Issuer shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may from time to time designate one or more other offices
or agencies (in or outside the City of New York) where the Senior Notes may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in the City of New York for such purposes. The Issuer will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
The Issuer shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the Trust Indenture Act. The agreement shall
implement the provisions of this Indenture that relate to such agent. The Issuer
shall promptly notify the Trustee of the name and address of any such agent. The
Issuer may change any Paying Agent, Registrar, co-registrar or transfer agent
without prior notice to any Holder. If the Issuer fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 5.6.
The Issuer initially appoints the Trustee as Registrar and Paying
Agent in connection with the Senior Notes.
SECTION 2.5. Paying Agent to Hold Money in Trust. If the Issuer shall
at any time act as its own Paying Agent, it will, by 10:00 a.m. (New York City
time) on each due date of the principal of, premium and Additional Interest, if
any, and interest on the Senior Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
of, premium and Additional Interest, if any, and interest on the Senior Notes so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
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Whenever the Issuer shall have one or more Paying Agents for the
Senior Notes, it will, at least one Business Day before such due date of the
principal of, premium and Additional Interest, if any, and interest on the
Senior Notes, deposit with such Paying Agent(s) a sum in same day funds (or New
York Clearing House funds if such deposit is made prior to the date on which
such deposit is required to be made) sufficient to pay the principal, premium
and Additional Interest, if any, and interest to become due on the Senior Notes,
such sum to be held in trust for the benefit of the Persons entitled to such
principal of, premium and Additional Interest, if any, or interest on the Senior
Notes, and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of such action or any failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium and Additional Interest, if any, and interest on the Senior Notes in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Issuer (or any other
obligor upon the Senior Notes) in the making of any payment of principal of,
premium and Additional Interest, if any, and interest on the Senior Notes;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all respects with the
provisions of this Indenture relating to the duties, rights and obligations of
such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by an order of the Issuer direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Issuer or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by the
Issuer or such
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Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of, premium and
Additional Interest, if any, and interest on the Senior Notes and remaining
unclaimed for two years after such principal of, premium and Additional
Interest, if any, and interest on the Senior Notes have become due and payable
shall be paid to the Issuer upon Request by the Issuer; and the Holder of such
Senior Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Issuer as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer.
SECTION 2.6. Senior Note Holder Lists. The Trustee, or such other
person designated by the Issuer, shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders (the "REGISTER"). If the Trustee is not the Registrar,
the Issuer shall furnish to the Trustee, in writing at least seven Business Days
before each Interest Payment Date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of all Holders.
SECTION 2.7. Transfer and Exchange. An entire Global Senior Note may
be exchanged for definitive Senior Notes in registered, certificated form
without interest coupons ("CERTIFICATED SENIOR NOTES") if (i) DTC (A) notifies
the Issuer that it is unwilling or unable to continue as depositary for the
Global Senior Notes and the Issuer thereupon fails to appoint a successor
depositary within 90 days or (B) has ceased to be a clearing agency registered
under the Exchange Act, (ii) the Issuer, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Certificated Senior Notes, or
(iii) there shall have occurred and be continuing a Default or an Event of
Default with respect to the Senior Notes. In any such case, the Issuer will
notify the Trustee in writing that, upon surrender by the Direct Participants
and Indirect Participants of their interest in such Global Senior Note,
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Certificated Senior Notes will be issued to each person that such Direct
Participants and Indirect Participants and DTC identify as being the beneficial
owner of the related Senior Notes.
Whenever all of a Global Senior Note is exchanged for one or more
Certificated Senior Notes, such Global Senior Note shall be surrendered by the
Holder thereof to the Trustee for cancellation. Whenever a part of a Global
Senior Note is exchanged for one or more Certificated Senior Notes (which shall
be in denominations of $1,000 or integral multiples thereof), such Global Senior
Note shall be surrendered by the Holder thereof to the Trustee who shall cause
an adjustment to be made to such Global Senior Note such that the principal
amount of such Global Senior Note will be equal to the portion of such Global
Senior Note not exchanged and shall thereafter return such Global Senior Note to
such Holder. Certificated Senior Notes issued in exchange for a Global Senior
Note or any portion thereof shall be registered in such names as DTC shall
instruct the Trustee, as requested by the Issuer. The Global Senior Notes may
not be exchanged other than as provided in this Section 2.7.
Beneficial interests in Global Senior Notes held by any Direct
Participant or Indirect Participant may be exchanged for Certificated Senior
Notes upon request to DTC, by such Direct Participant (for itself or on behalf
of an Indirect Participant), by the Trustee in accordance with customary DTC
procedures. Certificated Senior Notes delivered in exchange for any beneficial
interest in any Global Senior Note will be registered in the names, and issued
in any approved denominations, requested by DTC on behalf of such Direct
Participant or Indirect Participant (in accordance with DTC's customary
procedures).
Certificated Senior Notes shall be transferable only upon the
surrender of such Certificated Senior Notes for registration of transfer. When a
Certificated Senior Note is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements for such transfers are met. When Certificated
Senior Notes are presented to the Registrar or a co-registrar with a request to
exchange them for an equal principal amount of Certificated Senior Notes of
other denominations (including an exchange of Certificated Senior Notes for
Exchange Notes), the Registrar shall make the exchange as requested if the same
requirements are met; provided that no exchange of Certificated Senior Notes
shall occur until a Registration Statement shall have been declared effective by
the Commission and that any Certificated Senior Notes that are exchanged for
Exchange Notes shall be cancelled by the Trustee. To permit
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registration of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Certificated Senior Notes at the Registrar's or
co-registrar's request.
The Holder of a Global Senior Note may increase the principal amount
of such Global Senior Note held by it by surrendering any Certificated Senior
Notes registered in its name to the Registrar for cancellation; provided that no
Certificated Senior Note shall be so surrendered during the period beginning on
the Record Date and ending on the corresponding Interest Payment Date. Upon
surrender of such Certificated Senior Note, the Registrar shall forward such
Certificated Senior Note to the Trustee for cancellation and the Trustee shall
cause an adjustment to be made to such Global Senior Note to increase the
principal amount at maturity of such Global Senior Note by an amount equal to
the principal amount at maturity of the Certificated Senior Note surrendered for
cancellation.
The Issuer shall not be required to make and the Registrar need not
register transfers or exchanges of Certificated Senior Notes selected for
redemption (except, in the case of Certificated Senior Notes to be redeemed in
part, the portion thereof not to be redeemed) or any Certificated Senior Notes
for a period of 15 days before a selection of Certificated Senior Notes to be
redeemed.
Prior to the due presentation for registration of transfer of any
Certificated Senior Note, the Issuer, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall deem and treat the Person in whose name a
Certificated Senior Note is registered as the absolute owner of such
Certificated Senior Note for the purpose of receiving payment of principal of,
premium and Additional Interest, if any, and interest on such Certificated
Senior Note and for all other purposes whatsoever, whether or not such
Certificated Senior Note is overdue, and none of the Issuer, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
The Issuer may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section 2.7.
All Senior Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Senior Notes surrendered upon such
transfer or exchange.
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SECTION 2.8. Replacement Senior Notes. If a mutilated Certificated
Senior Note is surrendered to the Registrar, or if a mutilated Global Senior
Note is surrendered to the Issuer, or if a Holder claims that a Senior Note has
been lost, destroyed or wrongfully taken, the Issuer shall issue, and the
Trustee shall authenticate, a replacement Senior Note in such form as the Senior
Note mutilated, lost, destroyed or wrongfully taken, if the Holder satisfies all
reasonable requirements of the Trustee, the Registrar or the Issuer. If required
by the Trustee, the Registrar or the Issuer, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Issuer, the Registrar and the
Trustee to protect the Issuer, the Trustee, the Paying Agent, the Registrar and
any co-registrar from any loss which any of them may suffer if a Senior Note is
replaced. The Issuer, the Registrar and the Trustee may charge the Holder for
their expenses in replacing a Senior Note.
Every replacement Senior Note is an additional obligation of the
Issuer and every Holder of such Senior Note shall be entitled to all of the
benefits of this Indenture equally and proportionately with Holders of all other
Senior Notes duly issued hereunder.
SECTION 2.9. Outstanding Senior Notes. If a Senior Note is replaced
pursuant to Section 2.8 hereof, it ceases to be Outstanding unless the Trustee
and the Issuer receive proof satisfactory to them that the replaced Senior Note
is held by a bona fide purchaser.
If the Paying Agent (other than the Issuer or any of its subsidiaries
or affiliates) segregates and holds in trust, in accordance with this Indenture,
on a redemption date or maturity date, money sufficient to pay all principal of,
premium and Additional Interest, if any, and interest payable on that date with
respect to the Senior Notes (or portions thereof) to be redeemed or maturing, as
the case may be, then on and after that date such Senior Notes (or portions
thereof) shall cease to be Outstanding and interest on them shall cease to
accrue, as the case may be.
SECTION 2.10. Temporary Senior Notes. Until Certificated Senior Notes
are ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Senior Notes. Temporary Senior Notes shall be
substantially in the form of Certificated Senior Notes but may have variations
that the Issuer considers appropriate for temporary Senior Notes. Without
unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
corresponding Certificated Senior Notes and deliver them in exchange for
temporary Senior Notes.
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Holders of temporary Senior Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. Cancellation. The Issuer at any time may deliver Senior
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Senior Notes surrendered to them for registration of
transfer, exchange, purchase or payment. The Trustee (and no one else) shall
cancel all Senior Notes surrendered for registration of transfer, exchange,
purchase, payment or cancellation and shall dispose of cancelled Senior Notes in
its customary manner. The Issuer may not issue new Senior Notes to replace
Senior Notes it has redeemed, paid or delivered to the Trustee for cancellation.
The Trustee shall not authenticate Senior Notes in place of cancelled Senior
Notes other than pursuant to the terms of this Indenture.
SECTION 2.12. Defaulted Interest. If the Issuer defaults in a payment
of interest on the Senior Notes, the Issuer shall pay defaulted interest
("DEFAULTED INTEREST") (plus interest on such Defaulted Interest to the extent
lawful) in any lawful manner to the Persons who are Holders on a subsequent
Special Record Date. The Issuer shall fix or cause to be fixed any such Special
Record Date and payment date and shall promptly mail to each Holder and the
Trustee a notice that states the Special Record Date, if any, the payment date
and the amount of Defaulted Interest to be paid.
The Issuer may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Senior Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the Issuer
to the Trustee of the proposed payment pursuant to this paragraph, such manner
of payment shall be deemed practicable by the Trustee.
SECTION 2.13. Special Transfer Provisions. Unless and until a Global
Senior Note or a Certificated Senior Note is exchanged for an Exchange Note in
connection with an effective Exchange Registration or is registered in
accordance with the Shelf Registration Statement, each pursuant to the
Registration Rights Agreement, the following provisions shall apply:
(a) The following provisions shall apply with respect to any proposed
transfer of a U.S. Certificated Senior Note or an interest in the U.S. Global
Senior Note prior to the date which is two years after the later of the date of
original
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issue and the last date on which the Issuer or any Affiliate of the Issuer was
the owner of such Senior Note (or any predecessor thereto) (the "RESALE
RESTRICTION TERMINATION DATE"):
(i) a transfer of a U.S. Certificated Senior Note or a
beneficial interest in the U.S. Global Senior Note to a QIB shall be
made upon the representation of the transferee that it is purchasing
the Senior Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Issuer as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a U.S. Certificated Senior Note or a
beneficial interest in the U.S. Global Senior Note to an Institutional
Accredited Investor shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form of Exhibit D from the
proposed transferee and, if requested by the Issuer or the Trustee,
the delivery of an Opinion of Counsel that such transfer is in
compliance with the Securities Act; and
(iii) a transfer of a U.S. Certificated Senior Note or a
beneficial interest in the U.S. Global Senior Note to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form of Exhibit E from the proposed
transferee and, if requested by the Issuer or the Trustee, the
delivery of an Opinion of Counsel that such transfer is in compliance
with the Securities Act.
After the Resale Restriction Termination Date, interests
in a U.S. Certificated Senior Note or a beneficial interest in the U.S. Global
Senior Note may be transferred without requiring the certification set forth
in Exhibit D or Exhibit E or any additional certification.
(b) The following provisions shall apply with respect to
any proposed transfer of a Reg S Certificated Senior Note or a beneficial
interest in the Reg S Global Senior Note prior to the expiration of the
Distribution Compliance Period:
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(i) a transfer of a Reg S Certificated Senior Note or a
beneficial interest in the Reg S Global Senior Note to a QIB shall be
made upon the representation of the transferee that it is purchasing
the Senior Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Issuer as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Reg S Certificated Senior Note or a
beneficial interest in the Reg S Global Senior Note to an
Institutional Accredited Investor shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form of
Exhibit D from the proposed transferee and, if requested by the Issuer
or the Trustee, the delivery of an Opinion of Counsel that such
transfer is in compliance with the Securities Act; and
(iii) a transfer of a Reg S Certificated Senior Note or a
beneficial interest in the Reg S Global Senior Note to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the of Exhibit E from the proposed
transferee and, if requested by the Issuer or the Trustee, the
delivery of an Opinion of Counsel that such transfer is in compliance
with the Securities Act.
After the expiration of the Distribution Compliance Period,
interests in a Reg S Certificated Senior Note or a beneficial interest in the
Reg S Global Senior Note may be transferred without requiring the
certifications set forth in Exhibit D or Exhibit E or any additional
certification.
(c) Restrictive Legends. All Senior Notes originally
issued shall bear the Private Placement Legend or the Regulation S Legend
(each a "RESTRICTIVE LEGEND"). Upon the transfer, exchange or replacement of
Senior Notes not bearing a Restrictive Legend, the Registrar shall deliver
Senior Notes that do not bear a Restrictive Legend. Upon the transfer,
exchange or replacement of Senior Notes bearing a Restrictive Legend, other
than in connection with the exchange of Exchange Notes for Global Senior Notes
or Certificated Senior Notes, the Registrar shall deliver only Senior Notes
that bear a Restrictive Legend unless there is
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delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Issuer and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) General. By its acceptance of any Senior Note bearing a
Restrictive Legend, each Holder acknowledges the restrictions on transfer of
such Senior Note set forth in this Indenture and in such Restrictive Legend and
agrees that it will transfer such Senior Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Senior Note unless
such transfer complies with the restrictions on transfer of such Senior Note set
forth in this Indenture. In connection with any transfer of Senior Notes, each
Holder agrees by its acceptance of the Senior Notes to furnish the Registrar or
the Issuer such certifications, Opinion of Counsel or other information as the
Issuer may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the Issuer with
respect to) the sufficiency of any such certifications, Opinion of Counsel or
other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.7 or this Section 2.13 in
accordance with its customary procedures. The Issuer shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable prior
written notice to the Registrar.
In connection with any transfer of Senior Notes, the Trustee, the
Registrar and the Issuer shall be entitled to receive, shall be under no duty to
inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificate, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the
Senior Notes, or otherwise) received from any Holder and any transferee of any
Senior Notes regarding the validity, legality and due authorization of any such
transfer, the eligibility of the transferee to receive such Senior Notes and any
other facts and circumstances related to such transfer.
SECTION 2.14. CUSIP and ISIN Numbers. The Issuer in issuing the Senior
Notes may use "CUSIP" and "ISIN" numbers (if then generally in use), and the
Trustee shall use CUSIP and ISIN numbers in notices of redemption or exchange
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as a convenience to Holders; provided that any such notice shall state that no
representation is made as the correctness of such numbers either as printed on
the Senior Notes or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Senior Notes. The Issuer shall promptly notify the Trustee of any change in
the CUSIP or ISIN numbers.
ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.1. Satisfaction and Discharge of Indenture. This Indenture
shall, upon request of the Issuer, cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Senior Notes herein
expressly provided for) and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either:
(i) all Senior Notes theretofore authenticated and delivered (other
than (A) Senior Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.8 and (B)
Senior Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in
Section 2.5) have been delivered to the Trustee for cancellation; or
(ii) all such Senior Notes not theretofore delivered to the Trustee
for cancellation,
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
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redemption by the Trustee in the name, and at the expense, of the
Issuer,
and the Issuer, in the case of Section 3.1(a)(ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount of money or U.S. Government Obligations sufficient to pay
and discharge the entire indebtedness on such Senior Notes, not theretofore
delivered to the Trustee for cancellation, for principal, premium and Additional
Interest, if any, and interest to the date of such deposit (in the case of
Senior Notes which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer;
(c) such satisfaction and discharge shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer is a party or by which the
Issuer is bound; and
(d) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that (1) all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with and (2) such satisfaction and discharge will not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or by
which the Issuer is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 5.6 and, if money shall
have been deposited with the Trustee pursuant to this Section 3.1, the
obligations of the Trustee under Sections 2.5 and 3.2 shall survive such
satisfaction and discharge.
SECTION 3.2. Application of Trust Money. Subject to the provisions of
Section 2.5, all money deposited with the Trustee pursuant to Section 3.1 shall
be held in trust and applied by it, in accordance with the provisions of the
Senior Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium and
Additional Interest, if any, and interest on the Senior Notes for whose payment
such money has been deposited with the Trustee.
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If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 3.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuer's obligations under this Indenture and the Senior Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 3.1;
provided that if the Issuer has made any payment of principal of, premium or
Additional Interest, if any, or interest on any Senior Notes because of the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Senior Notes to receive such payment for the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IV
DEFAULTS AND REMEDIES
SECTION 4.1. Events of Default. "EVENT OF DEFAULT," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether or not it shall be voluntary or involuntary or be
effected by the operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of interest on or Additional Interest with
respect to any Senior Note when the same becomes due and payable and the
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of and any premium on any
Senior Note when the same becomes due and payable at its Maturity upon
acceleration, optional redemption or otherwise; or
(c) default in the performance, or breach, of any covenant or
agreement of the Issuer hereunder (other than a default in the performance, or
breach, of a covenant or agreement that is specifically dealt with in clauses
(a), (b) and (h) in this Section 4.1), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Senior Notes, a
written notice specifying such default or breach and stating that such notice is
a "NOTICE OF DEFAULT" hereunder; or
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(d) (1) an event of default shall have occurred under any mortgage,
bond, indenture, loan agreement or other document evidencing any issue of
Indebtedness of the Issuer or any Subsidiary for money borrowed (or the payment
of which is guaranteed by the Issuer or any Subsidiary), which issue has an
aggregate outstanding principal amount of not less than $25,000,000, and such
default shall have resulted in such Indebtedness becoming, whether by
declaration or otherwise, due and payable prior to the date on which it would
otherwise become due and payable or (2) a default in any payment when due at
final Stated Maturity of any such Indebtedness outstanding in an aggregate
principal amount of not less than $25,000,000 and, in each case, ten Business
Days shall have elapsed after such event during which period such event shall
not have been cured or rescinded or such Indebtedness shall not have been
satisfied; or
(e) final judgments or orders are rendered against the Issuer or any
Subsidiary by a court or regulatory agency of competent jurisdiction which
require the payment in money, either individually or in an aggregate amount,
that is more than $25,000,000 (other than any judgment to the extent a reputable
non-affiliated insurance company has accepted liability) and such judgment or
order shall not be discharged and either (1) any creditor shall have commenced
an enforcement proceeding upon such judgment or order, which enforcement
proceeding shall have remained unstayed for a period of ten days, or (2) a
period of 60 days during which a stay of enforcement shall not be in effect
shall have elapsed following the date on which any period for appeal has
expired; or
(f) a decree or order is entered by a court having jurisdiction (1)
for relief in respect of the Issuer or any Principal Subsidiary in an
involuntary case or proceeding under the Federal Bankruptcy Code or any other
federal or state bankruptcy, insolvency, reorganization or similar law or (2)
adjudging the Issuer or any Principal Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Issuer or any Principal Subsidiary under the Federal Bankruptcy Code or
any other applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Issuer or any Principal Subsidiary or of any substantial part of any of their
properties, or ordering the winding up or liquidation of any of their affairs,
and any such decree or order remains unstayed and in effect for a period of 60
consecutive days; or
(g) the Issuer or any Principal Subsidiary institutes a voluntary case
or proceeding under the Federal Bankruptcy Code or any other applicable
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federal or state law or any other case or proceedings to be adjudicated bankrupt
or insolvent, or the Issuer or any Principal Subsidiary consents to the entry of
a decree or order for relief in respect of the Issuer or any Principal
Subsidiary in any involuntary case or proceeding under the Federal Bankruptcy
Code or any other applicable federal or state law or to the institution of
bankruptcy or insolvency proceedings against the Issuer or any Principal
Subsidiary, or the Issuer or any Principal Subsidiary files a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable federal or state law, or consents to the filing of any such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or other similar official) of any
of the Issuer or any Principal Subsidiary or of any substantial part of its
property, or makes an assignment for the benefit of creditors, or admits in
writing its inability to pay its debts generally as they become due or takes
corporate action in furtherance of any such action; or
(h) default in the performance or breach of the provisions of Article
VII hereof.
SECTION 4.2. Acceleration of Maturity; Rescission. If an Event of
Default (other than an Event of Default specified in Section 4.1(f) or
Section 4.1(g)) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Outstanding Senior Notes, by written
notice to the Issuer (and to the Trustee if such notice is given by the
Holders), may, and the Trustee at the request of such Holders shall, declare
all unpaid principal of, premium and Additional Interest, if any, and accrued
interest on, all the Senior Notes to be due and payable immediately.
Notwithstanding the foregoing, in the event of an Event of Default specified in
Section 4.1(f) or 4.1(g), the amounts described above shall by such fact itself
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due has been obtained by the Trustee, the Holders of at
least a majority in aggregate principal amount of the Outstanding Senior Notes,
by written notice to the Issuer and the Trustee, may annul such declaration if
(a) the Issuer has paid or deposited with the Trustee a sum sufficient to pay
(1) all sums paid or advanced by the Trustee under this Indenture and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (2) all overdue interest on all Senior Notes, (3) the
principal of, and premium and Additional Interest, if any, on any Senior Notes
which have become due otherwise
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than by such declaration of acceleration and interest thereon at the rate borne
by the Senior Notes, and (4) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the Senior Notes;
and (b) all Events of Default, other than the non-payment of principal of the
Senior Notes which have become due solely by such declaration of acceleration,
have been waived as provided in Section 4.13 or cured. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Senior Notes because of an Event of Default
specified in Section 4.1a(d) shall have occurred and be continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the
Indebtedness that is the subject of such Event of Default has been discharged or
the holders thereof have rescinded their declaration of acceleration in respect
of such Indebtedness, and written notice of such discharge or rescission, as the
case may be, shall have been given to the Trustee by the Issuer and
countersigned by the holders of such Indebtedness or a trustee, fiduciary or
agent for such holders, within 60 days after such declaration of acceleration in
respect of the Senior Notes, and no other Event of Default has occurred during
such 60-day period which has not been cured or waived during such period.
SECTION 4.3. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(a) default is made in the payment of any interest on or Additional
Interest with respect to any Senior Note when the same becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of and any premium
on any Senior Note at the Maturity thereof,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Senior Notes, the whole amount then due and payable on such
Senior Notes for principal, premium and Additional Interest, if any, and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on overdue installments of interest and Additional
Interest, if any, at the rate borne by the Senior Notes; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon the Senior Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer or any other obligor upon the Senior Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate private or judicial proceedings
as are necessary or as the Trustee shall deem necessary to protect and enforce
such rights.
SECTION 4.4. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Senior Notes or the property of the
Issuer or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Senior Notes shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Issuer for the payment of overdue
principal, premium and Additional Interest, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium and Additional Interest, if any, and interest owing and unpaid in
respect of the Senior Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 5.6.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any proposal,
plan of reorganization, arrangement, adjustment or composition or other similar
arrangement affecting the Senior Notes or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 4.5. Trustee May Enforce Claims Without Possession of Senior
Notes. All rights of action and claims under this Indenture or the Senior Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Senior Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Senior Notes in respect of which such
judgment has been recovered.
SECTION 4.6. Application of Money Collected. Any money, securities or
other property collected by the Trustee pursuant to this Article IV shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium and
Additional Interest, if any, and interest, upon presentation of the Senior Notes
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 5.6;
SECOND: To the payment of the amounts then due and unpaid
upon the Senior Notes for principal, premium and Additional Interest,
if any, and interest, 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 Senior
Notes for principal, premium and Additional Interest, if any, and
interest; and
THIRD: The balance, if any, to the Issuer.
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SECTION 4.7. Limitation on Suits. No Holder shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Senior Notes, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Senior Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in the Trustee's own
name;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) 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 Senior Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture except in the manner provided in
this Indenture and for the equal and ratable benefit of all the Holders.
SECTION 4.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture or
any provision of the Senior Notes, any Holder shall have the right, which is
absolute and unconditional, to receive payment of the principal of, premium and
Additional Interest, if any, and (subject to Section 2.12) interest on such
Senior Note on the respective due dates expressed in such Senior Note (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
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SECTION 4.9. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case the Issuer, the Trustee and the Holders 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 and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 4.10. Rights and Remedies Cumulative. Except as provided in
Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 4.11. Delay of Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article IV or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 4.12. Control by Holders. The Holders of not less than a
majority in principal amount of the Outstanding Senior Notes shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Trustee to personal liability, and
(b) subject to the provisions of Section 315 of the Trust Indenture
Act, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
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SECTION 4.13. Waiver of Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Senior Notes by notice
to the Trustee may on behalf of all Holders waive any existing or past Default
or Event of Default hereunder and its consequences, except a Default or Event of
Default:
(a) in the payment of the principal of, premium or Additional
Interest, if any, or interest on any Senior Note when the same becomes due and
payable,
(b) in respect of a covenant or provision hereof which under Article
VIII cannot be modified or amended without the consent of the Holder of each
Outstanding Senior Note affected, or
(c) in respect of a covenant or provision hereof which under Article
VIII cannot be modified or amended without the consent of the Holders of a
greater percentage in principal amount of, or all of, the Outstanding Senior
Notes.
The Holders of not less than the percentage in principal amount of Outstanding
Senior Notes specified in Article VIII may on behalf of the Holders of all the
Senior Notes waive any past Default or Event of Default hereunder and its
consequences arising under a covenant or provision specified in Section 4.13(b).
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 4.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Senior Note 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, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees 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 4.14
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 the Outstanding Senior Notes, or to
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any suit instituted by any Holder for the enforcement of the payment of the
principal of, premium or Additional Interest, if any, or interest on any Senior
Note on or after the respective Stated Maturities expressed in such Senior Note
(or, in the case of redemption, on or after the Redemption Date).
ARTICLE V
THE TRUSTEE
SECTION 5.1. Notice of Events of Default. Within 60 days after the
occurrence of any Event of Default, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Register or at the addresses
provided by Holders in writing to the Trustee, notice of such Event of Default
hereunder actually known to a Responsible Officer of the Trustee, unless such
Event of Default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of, premium or
Additional Interest, if any, or interest on any Senior Note, the Trustee shall
be protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.
SECTION 5.2. Certain Rights of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the period when an Event of Default is continuing:
(i) the Trustee is required to perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein and, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this Section 5.2(c) does not limit the effect of Section 5.2(b);
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 4.12; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 5.2.
(e) 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, including such reasonable advances as may be requested by
the Trustee.
(f) Subject to the foregoing Sections 5.2(a), 5.2(b), 5.2(c), 5.2(d)
and 5.2(e):
(i) The Trustee may conclusively rely and shall be fully protected in
acting or in refraining from acting upon any document (whether in its
original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document. Any request or
direction of the Issuer mentioned herein shall be sufficiently
evidenced by a Request or Order of the Issuer and any resolution by
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the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(ii) Before the Trustee acts or refrains form acting, it may require
an Officers' Certificate and/or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
In addition, in determining the compliance of the Issuer with the
financial covenants set forth herein, the Trustee may rely on the
certificate delivered to the Trustee pursuant to Section 9.6(a).
(iii) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent
appointed with due care.
(iv) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within its
rights or powers.
(v) The Trustee may consult with counsel, accountants or other experts
of its own selection, and any advice of such counsel, accountants or
other experts shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice.
(vi) The Trustee shall not be deemed to have notice of any Default
hereunder, except for Events of Default described in Paragraphs (a),
(b) or (c) of Section 4.1 (only to the extent that the Trustee acts as
the Paying Agent), unless a Responsible Officer of the Trustee shall
be specifically notified by a writing delivered to it of such Default
by the Issuer, the Paying Agent (to the extent the Trustee is not
acting as the Paying Agent) or by the Holders of at least 25% in
aggregate principal amount of the Outstanding Senior Notes, and in the
absence of such notice so delivered, the Trustee may conclusively
assume that there is no Default except as aforesaid.
SECTION 5.3. Not Responsible for Recitals or Issuance of Senior Notes.
The recitals contained herein and in the Senior Notes, except the Trustee's
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certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
the Senior Notes. The Trustee shall not be accountable for the use or
application by the Issuer of Senior Notes or the proceeds thereof, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Senior Notes and perform its obligations hereunder.
SECTION 5.4. Trustee and Agents May Hold Senior Notes; Collections;
Etc. The Trustee and any Paying Agent, Registrar or other agent of the Issuer,
in its individual or any other capacity, may become the owner or pledgee of
Senior Notes with the same rights it would have if it were not the Trustee,
Paying Agent, Registrar or such other agent and, subject to Sections 310(b) and
311 of the Trust Indenture Act, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not Trustee, Paying Agent, Registrar or such other agent.
SECTION 5.5. Money Held in Trust. All moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust hereunder for
the purposes for which they were received and need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Issuer.
SECTION 5.6. Compensation and Reimbursement. The Issuer covenants and
agrees:
(a) to pay to the Trustee as agreed upon from time to time in writing
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
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(c) to fully indemnify the Trustee and each of its officers,
directors, employees, agents and counsel and any predecessor Trustee for, and to
hold them harmless against, any and all loss, liability, claim, damage or
expense (including taxes other than taxes based on the income of the Trustee)
incurred without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligation of the Issuer under this Section 5.6 to compensate the
Trustee and to pay and reimburse the Trustee for such expenses, disbursements
and advances shall constitute additional Indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
As security for the performance of the obligation of the Issuer under
this Section 5.6, the Trustee shall have a claim prior to the Senior Notes upon
all money, securities or other property held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium and
Additional Interest, if any, or interest on particular Senior Notes.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 4.1(f) or 4.1(g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Federal Bankruptcy Code and any other applicable
federal or state bankruptcy law. The provisions of this Section 5.6 shall
survive the resignation or removal of the Trustee or the termination of this
Indenture.
SECTION 5.7. Conflicting Interests. The Trustee shall comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 5.8. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and which shall have a combined
capital and surplus of at least $50,000,000 and have its Corporate Trust Office
located in the City of New York (or if its Corporate Trust Office shall not be
located in the City of New York, the Issuer shall, pursuant to Section 2.4,
maintain an office or agency in the City of New York where the Senior Notes may
be presented or surrendered and notices and demands hereunder may be made or
served) to the extent there is such an institution eligible and willing to
serve. If such corporation publishes reports of
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condition at least annually pursuant to law or to the requirements of federal,
state, territorial or the District of Columbia supervising or examining
authority, then, for the purposes of this Section 5.8, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 5.8, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article V.
SECTION 5.9. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article V shall become effective until the acceptance of
appointment by the successor Trustee under Section 5.10, at which time the
retiring Trustee shall be fully discharged from its obligations hereunder.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition at the expense of
the Issuer any court of competent jurisdiction for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper, appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of
a majority in principal amount of the Outstanding Senior Notes, delivered to the
Trustee and the Issuer. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the removed Trustee may petition at the expense of the
Issuer any court of competent jurisdiction for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by
the Issuer or by any Holder who has been a bona fide Holder for at
least six months, or
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(ii) the Trustee shall cease to be eligible under Section 5.8 and
shall fail to resign after written request therefor by the Issuer or
by any Holder who has been a bona fide Holder for at least six months,
or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by a Board Resolution, may remove the
Trustee, or (ii) subject to Section 4.14, any Holder who has been a bona fide
Holder for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Senior Notes
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with Section 5.10, become the successor Trustee and supersede the successor
Trustee appointed by the Issuer. If no successor Trustee shall have been so
appointed by the Issuer or the Holders and so accepted appointment, any Holder
who has been a bona fide Holder for at least six months may on behalf of himself
and all others similarly situated petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first class mail, postage prepaid, to the Holders as
their names and addresses appear in the Register. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 5.10. Acceptance of Appointment of Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
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Issuer 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; provided, however, that the retiring Trustee shall
continue to be entitled to the benefit of Section 5.6(c); but, on request of the
Issuer or the successor Trustee, such retiring Trustee shall, upon payment of
its charges and the charges of its agents and counsel, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Issuer shall execute
any and all instruments in order to fully vest in such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article V.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 5.10, the Issuer shall give notice thereof to the Holders by
mailing such notice to the Holders as their names and addresses appear on the
Register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If the Issuer fails to give
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be given at the
expense of the Issuer.
SECTION 5.11. 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 V, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Senior Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Senior Notes so authenticated
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with the same effect as if such successor Trustee had itself authenticated such
Senior Notes.
SECTION 5.12. Preferential Collection of Claims Against the Issuer. If
and when the Trustee shall be or become a creditor of the Issuer (or any other
obligor under the Senior Notes), the Trustee shall be subject to the provisions
of Section 311(b) of the Trust Indenture Act regarding the collection of claims
against the Issuer (or any such other obligor).
SECTION 5.13. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Issuer may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Issuer actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 6.1. Disclosure of Names and Addresses of Holders. Every
Holder, by receiving and holding the same, agrees with the Issuer and the
Trustee that neither the Issuer nor the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312 of the Trust Indenture
Act.
SECTION 6.2. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Senior Notes,
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the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Register, as provided in Trust Indenture Act Section 313(c), a
brief report dated as of such May 15 if required by Trust Indenture Act Section
313(a).
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1. Issuer May Consolidate, Etc., Only on Certain Terms.
After the Issue Date, the Issuer shall not consolidate with or merge with or
into any other Person, or, directly or indirectly, sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets
in one or more related transactions to any Person or group of affiliated Persons
unless, at the time and after giving effect thereto:
(a) (i) the Issuer shall be the continuing corporation, or (ii) the
Person (if other than the Issuer) formed by such consolidation, or into which
the Issuer is merged, or the Person that acquires by sale, assignment, transfer,
lease, conveyance or other disposition the assets of the Issuer, substantially
as an entirety (the "SURVIVING ENTITY"), is a corporation duly organized and
validly existing under the laws of the United States or any other jurisdiction
that is not materially adverse to the holders of the Senior Notes and shall, in
the case of clause (ii), expressly assume, by supplemental indenture hereto,
executed and delivered to the Trustee, in form reasonably satisfactory to the
Trustee, all the obligations of the Issuer under this Indenture;
(b) immediately before and after such transaction, giving effect to
such transaction, no Default or Event of Default shall have occurred and be
continuing;
(c) immediately after giving effect to such transaction on a pro forma
basis, the Consolidated Net Worth (after giving pro forma effect to such
transaction but not including the effect of any purchase accounting adjustments
or the accrual of deferred tax liabilities resulting from the transaction) of
the Issuer (or the Surviving Entity) is at least equal to the Consolidated Net
Worth of the Issuer immediately before such transaction;
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(d) if any of the property or assets of the Issuer would thereupon
become subject to any Lien, the outstanding Senior Notes shall be secured
equally and ratably with (or prior to) the obligation or liability secured by
such Lien, unless the Issuer could create such Lien hereunder without equally
and ratably securing the Senior Notes; and
(e) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
transfer or lease and such supplemental indenture, if one is required by this
Section 7.1, comply with this Section 7.1 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 7.2. Successor Substituted. Upon any consolidation or merger
or any sale, assignment, transfer, lease or conveyance or other disposition of
all or substantially all of the assets of the Issuer in accordance with Section
7.1, the successor Person formed by such consolidation or into which the Issuer
is merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor Person had been named as the Issuer herein. When a
successor assumes all the obligations of its predecessor under this Indenture
and the Senior Notes, the predecessor will be released from those obligations;
provided that in the case of a transfer by lease, the predecessor corporation
shall not be released from the payment of principal of, premium and Additional
Interest, if any, and interest on the Senior Notes.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto in form satisfactory to the Trustee,
for any of the following purposes:
(a) to cure any ambiguity or to correct any provision herein which may
be defective or inconsistent with any other provision herein;
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(b) to provide for the assumption of the Issuer's obligations to
Holders in the case of a merger or consolidation;
(c) to secure the Senior Notes pursuant to the requirements of Section
7.1 or 9.5 or otherwise;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust Indenture
Act, as contemplated by this Indenture or otherwise;
(e) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder; or
(f) to make any other change that would provide any additional rights
or benefits to the Holders or that does not adversely affect the legal rights of
any Holder under this Indenture or the Senior Notes.
SECTION 8.2. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Senior Notes (including consents obtained in connection with a
tender offer or exchange offer for the Senior Notes), by Act of such Holders
delivered to the Issuer and the Trustee, the Issuer, when authorized by a Board
Resolution, and the Trustee may enter into one or more 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 waiving or modifying
in any manner the rights of the Holders under this Indenture; provided, however,
that no such supplemental indenture, amendment or waiver shall without the
consent of the Holder of each Outstanding Senior Note affected thereby:
(i) change the Stated Maturity or the principal of, or any installment
of interest on, or change the obligation of the Issuer to pay any
Additional Interest with respect to, any Senior Note or reduce the
principal amount thereof or the rate of interest thereon or any
provision relating to the Redemption Price of Senior Notes or the
periods during which redemption may be effected, or change the coin or
currency in which the principal of any Senior Note or premium or
Additional Interest, if any, or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment
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after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date); or
(ii) reduce the percentage in principal amount of the Outstanding
Senior Notes, the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture; or
(iii) modify any of the provisions of this Section 8.2, Section 4.13
or Section 9.8, 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 Senior Note affected
thereby.
It shall not be necessary for any Act of Holders under this Section
8.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article VIII or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
315(a) through 315(d) of the Trust Indenture Act and Section 5.2 hereof) 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. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which adversely affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
SECTION 8.4. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article VIII, 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 Senior Notes
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
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SECTION 8.5. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article VIII shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 8.6. Reference in Senior Notes to Supplemental Indentures.
Senior Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article VIII may, and shall if required by the
Issuer, bear a notation in form approved by the Issuer as to any matter provided
for in such supplemental indenture. If the Issuer shall so determine, new Senior
Notes so modified as to conform, in the opinion of the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and shall be
authenticated and delivered by the Trustee in exchange for Outstanding Senior
Notes.
ARTICLE IX
COVENANTS
SECTION 9.1. Payment of Principal, Premium and Interest. The Issuer
will duly and punctually pay the principal of and any premium and interest on
the Senior Notes in accordance with the terms of the Senior Notes and this
Indenture. Principal, premium, if any, and interest shall be considered paid on
the date due if the Paying Agent (other than the Issuer) holds as of 10:00 a.m.
(New York City time) on that date money sufficient to pay all principal,
premium, if any, and interest then due. The Issuer shall pay all Additional
Interest, if any, in the same manner on the dates and in the amounts set forth
in the Registration Rights Agreement. The Issuer will promptly notify the
Trustee of an obligation to pay Additional Interest under the Registration
Rights Agreement and any cure thereof.
The Issuer shall pay interest on overdue principal and premium, if
any, and to the extent lawful, interest on overdue installments of interest and
Additional Interest, at the rate per annum set forth in the Senior Notes.
SECTION 9.2. Corporate Existence. The Issuer shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and the corporate rights
(charter and statutory), corporate licenses and corporate franchises of the
Issuer and each Subsidiary, except where a failure to do so, singly or in the
aggregate, would not have a material adverse effect upon the business,
prospects, assets, conditions (financial or otherwise) or
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results of operations of the Issuer and the Subsidiaries taken as a whole
determined on a consolidated basis in accordance with GAAP; provided that the
Issuer shall not be required to preserve any such existence (except of the
Issuer), right, license or franchise if the Board of Directors or the board of
directors of the Subsidiary concerned, shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer or
such Subsidiary and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 9.3. Payment of Taxes and Other Claims. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied
or imposed upon it or any of the Subsidiaries or upon the income, profits or
property of the Issuer or any of the Subsidiaries and (b) all material lawful
claims for labor, materials and supplies, which, if unpaid, might by law become
a Lien upon the property of the Issuer or any of the Subsidiaries that could
produce a material adverse effect on the consolidated financial condition of the
Issuer (in the good faith judgment of management of the Issuer); provided,
however, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and in respect of which appropriate reserves (in the good faith
judgment of management of the Issuer) are being maintained in accordance with
GAAP.
SECTION 9.4. Maintenance of Properties; Insurance; Books and Records;
Compliance with Law. (a) The Issuer shall cause all properties owned by or
leased to it or any Subsidiary and used or useful in the conduct of its business
or the business of such Subsidiary to be maintained and kept in normal
condition, repair and working order, ordinary wear and tear excepted; provided
that nothing in this Section 9.4 shall prevent the Issuer or any Subsidiary from
discontinuing the use, operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Board of Directors or the board of directors of the Subsidiaries
concerned, or of any officer (or other agent employed by the Issuer or any
Subsidiary) of the Issuer or such Subsidiary having managerial responsibility
for any such property, desirable in the conduct of the business of the Issuer or
any Subsidiary and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
(b) The Issuer shall provide or cause to be provided, for itself and
any Subsidiary, insurance (including appropriate self-insurance) against loss or
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damage of the kinds customarily insured against by corporations similarly
situated and owning like properties in the same general areas in which the
Issuer or such Subsidiaries operate.
(c) The Issuer shall and shall cause each Subsidiary to keep proper
and true books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Issuer and
each Subsidiary, and reflect on its financial statements adequate accruals and
appropriations to reserves, all in accordance with GAAP consistently applied
except for accounting changes required by the AICPA, FASB or the Commission to
the Issuer and the Subsidiaries taken as a whole.
(d) The Issuer shall and shall cause each Subsidiary to comply with
all statutes, laws, ordinances or government rules and regulations to which it
is subject, except where a failure to do so, singly or in the aggregate, is not
likely to have a materially adverse effect upon the business, prospects, assets
or condition (financial or otherwise) or results of operations of the Issuer and
the Subsidiaries taken as a whole.
SECTION 9.5. Liens. The Issuer will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien securing Indebtedness (other than Permitted Liens) on any property or
asset now owned or hereafter acquired, or on any income or profits therefrom or
assign or convey any right to receive income therefrom, unless all payments due
under the Senior Notes and hereunder are secured on an equal and ratable basis
with (or prior to in the case of Liens with respect to subordinated obligations)
the obligations so secured until such time as such obligations are no longer
secured by a Lien.
SECTION 9.6. Statement as to Compliance; Notice of Default; Provision
of Financial Statements. (a) The Issuer will deliver to the Trustee, within 120
days after the end of each fiscal year ending after the date hereof, a
certificate of its principal executive officer, principal financial officer or
principal accounting officer stating whether, to such officer's knowledge, the
Issuer is in compliance with all covenants and conditions to be complied with by
it under this Indenture. For purposes of this Section 9.6, such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
(b) If the Issuer becomes aware of a Default or if the Trustee, any
Holder or the trustee for or the holder of any other evidence of Indebtedness of
the
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Issuer (other than Indebtedness in the aggregate principal amount of less than
$25,000,000) gives any notice or takes any other action with respect to a
claimed Default, the Issuer shall deliver to the Trustee an Officers'
Certificate specifying such Default, notice or other action within five Business
Days of its occurrence.
(c) The Issuer shall supply without cost to each Holder, and file with
the Trustee within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and quarterly reports and of the
information, documents and other reports which the Issuer may be required to
file with the Commission pursuant to Sections 13(a), 13(c) or 15(d) of the
Exchange Act; and
(d) Whether or not the Issuer is required to file with the Commission
such reports and other information referred to in Section 9.6(c), the Issuer
shall file with the Commission and the Trustee such reports and information and
furnish without cost to each Holder all financial information that would be
required to be contained in a filing referred to in Section 9.6(c). The Issuer
shall also make such reports available to prospective purchasers of the Senior
Notes, securities analysts and broker-dealers upon their written request. The
Issuer shall also file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 9.7. Waiver of Stay; Extension of Usury Law. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (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.
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SECTION 9.8. Waiver of Certain Covenants. The Issuer may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 9.4 and 9.5 if, before or after the time for such compliance, the
Holders of not less than a majority in aggregate principal amount of the Senior
Notes at the time Outstanding shall, by Act of such Holders, waive such
compliance in such instance with such covenant or condition. No such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Issuer and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE X
REDEMPTION OF SENIOR NOTES
SECTION 10.1. Right of Redemption. The Issuer shall have the right to
redeem the Senior Notes, in whole or in part, at any time and from time to time,
subject to the receipt of any consent required under the terms of any
Indebtedness of the Issuer which may be outstanding from time to time.
SECTION 10.2. Applicability of Article. Redemption of Senior Notes at
the election of the Issuer or otherwise, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision
and this Article X.
SECTION 10.3. Election to Redeem; Notice to Trustee. The election of
the Issuer to redeem any Senior Notes pursuant to Section 10.1 shall be
evidenced by a Board Resolution. In case of such redemption, the Issuer shall,
at least 60 days prior to the Redemption Date fixed by it (unless a shorter
notice period shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Senior Notes to be redeemed.
SECTION 10.4. Selection by Trustee of Senior Notes to Be Redeemed. If
less than all of the Senior Notes are to be redeemed, the particular Senior
Notes or portions thereof to be redeemed shall be selected not more than 60 days
and not less than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Senior Notes not previously called for redemption on a pro rata
basis, by lot or by any other method the Trustee shall deem fair and appropriate
and in compliance with the requirements of such principal national securities
exchange, if
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any, on which the Senior Notes are listed or, if the Senior Notes are not so
listed, on a pro rata basis, by lot or by any other method the Trustee shall
deem fair and appropriate; provided that the amounts to be redeemed shall be
equal to at least $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Issuer, DTC and the Registrar in
writing of the Senior Notes selected for redemption and, in the case of any
Senior Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Senior Notes shall relate, in
the case of any Senior Note redeemed or to be redeemed only in part, to the
portion of the principal amount of such Senior Note which has been or is to be
redeemed.
SECTION 10.5. Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Senior Notes to be
redeemed at the Redemption Price specified in Section 10.9.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price including, in connection with an optional
redemption pursuant to Section 10.9, the estimated Make-Whole Amount due in
connection with such redemption (calculated as if the date of such notice were
the date of the prepayment) and setting forth the details of such calculation of
Make-Whole Amount;
(c) if less than all Outstanding Senior Notes are to be redeemed, the
identification (and, if the case of a Senior Note to be redeemed in part, the
principal amount) of the particular Senior Notes to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Senior Note or portion thereof, and that (unless the
Issuer shall default in payment of the Redemption Price) interest thereon shall
cease to accrue on and after said date;
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(e) the place or places where such Senior Notes are to be surrendered
for payment of the Redemption Price;
(f) that Senior Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(g) the CUSIP or ISIN number or numbers, if any, relating to such
Senior Notes, but that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number listed in such notice or printed on the
Senior Notes and that reliance may be placed only on the other identification
numbers printed on the Senior Notes;
(h) in the case of a Certificated Senior Note to be redeemed in part,
the principal amount of such Certificated Senior Note to be redeemed and that
after the Redemption Date upon surrender of such Certificated Senior Note, a new
Certificated Senior Note or Certificated Senior Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued; and
(i) in the case of a Global Senior Note to be redeemed in part, the
principal amount of such Global Senior Note to be redeemed and that after the
Redemption Date upon surrender of such Global Senior Note a new Global Senior
Note in principal amount equal to the unredeemed portion will be issued or an
adjustment will be made to the existing Global Senior Note such that the
aggregate principal amount of the Global Senior Note will equal the unredeemed
portion of the Global Senior Note.
Notice of redemption of Senior Notes to be redeemed at the election of
the Issuer shall be given by the Issuer or, at its request, by the Trustee in
the name and at the expense of the Issuer. Failure to give notice or any defect
in the notice to any Holder shall not affect the validity of the notice to any
other Holder.
SECTION 10.6. Deposit of Redemption Price. On or prior to any
Redemption Date, the Issuer shall deposit with the Trustee or with a Paying
Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 2.5) an amount of money in same-day funds (or
New York Clearing House funds if such deposit is made prior to the applicable
Redemption Date) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) Additional Interest, if any,
and accrued interest on, all the Senior Notes or portions thereof which are to
be redeemed on that date.
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SECTION 10.7. Senior Notes Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Senior Notes to be redeemed
shall, subject to the provisions of Section 10.3, on the Redemption Date, become
due and payable at the Redemption Price therein specified and from and after
such date (unless the Issuer shall default in the payment of the Redemption
Price and accrued interest) such Senior Notes shall cease to bear interest. Upon
surrender of any such Senior Note for redemption in accordance with said notice,
such Senior Note shall be paid by the Issuer at the Redemption Price together
with accrued interest to the Redemption Date; provided, however, that
installments of interest on any Certificated Senior Notes whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Certificated Senior Notes, or one or more predecessor Certificated Senior Notes,
registered as such on the relevant Regular Record Dates according to the terms
and the provisions of Section 2.6.
If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Redemption Date at the rate
borne by such Senior Note.
SECTION 10.8. Senior Notes Redeemed in Part. Any Senior Note which is
to be redeemed only in part shall be surrendered at the office or agency of the
Issuer maintained for such purpose pursuant to Section 2.4 (with, if the Issuer,
the Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer, the Registrar or the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing). Upon surrender of a Certificated Senior Note that is redeemed in part,
the Issuer shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Certificated Senior Note without service charge, a new
Certificated Senior Note or Certificated Senior Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Certificated
Senior Note so surrendered. Upon surrender of a Global Senior Note that is
redeemed in part, the Paying Agent shall forward the Global Senior Note to the
Trustee who shall reduce the principal amount of such Global Senior Note to an
amount equal to the unredeemed portion of the Global Senior Note surrendered.
SECTION 10.9. Optional Redemption. (a) The Senior Notes are subject to
optional redemption by the Issuer at a Redemption Price equal to 100% of the
principal amount, together with accrued and unpaid interest and Additional
Interest, if any, thereon to the Redemption Date (subject to the right of
Holders of
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record on relevant Regular Record Dates to receive interest due on an Interest
Payment Date), plus the Make-Whole Amount, if any, with respect to such Senior
Notes.
Three Business Days prior to such redemption, the Issuer shall give
notice to the Quotation Agent requesting the Quotation Agent to provide a quote
of the Comparable Treasury Price, and the Quotation Agent shall provide such
quotation to the Issuer on or before one Business Day prior to such redemption.
One Business Day prior to such redemption, the Quotation Agent or the
Issuer shall give notice to the Trustee specifying the calculation of the
Make-Whole Amount as of the Redemption Date.
(b) The Senior Notes are not subject to redemption through operation
of a sinking fund.
ARTICLE XI
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.1. Option to Effect Defeasance or Covenant Defeasance. The
Issuer may, at its option by Board Resolution, at any time, elect to have
either Section 11.2 or Section 11.3 be applied to all Outstanding Senior Notes
upon compliance with the conditions set forth below in this Article XI.
SECTION 11.2. Defeasance and Discharge. Upon the Issuer's exercise
under Section 11.1 of the option applicable to this Section 11.2, the Issuer
shall be deemed to have been discharged from its obligations with respect to all
Outstanding Senior Notes on the date the conditions set forth below are
satisfied (hereinafter, "DEFEASANCE"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Senior Notes, which shall thereafter
be deemed to be "OUTSTANDING" only for the purposes of Section 11.5 and the
other sections of this Indenture referred to in Section 11.2(a) and Section
11.2(b) below, and to have satisfied all other obligations under such Senior
Notes and this Indenture (and the Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Outstanding Senior Notes to receive
solely from the trust fund described in Section
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11.5 and as more fully set forth in such Section, payments in respect of the
principal of, premium and Additional Interest, if any, and interest on such
Senior Notes when such payments are due, or on the Redemption Date, as the case
may be, (b) the Issuer's obligations with respect to such Senior Notes under
Section 2.4, Section 2.5, Section 2.6, Section 2.7, Section 2.8, Section 2.10
and Section 2.13, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuer's obligations in connection therewith, and (d)
this Article XI. Subject to compliance with this Article XI the Issuer may
exercise its option under this Section 11.2 notwithstanding the prior exercise
of its option under Section 11.3 with respect to the Senior Notes.
SECTION 11.3. Covenant Defeasance. Upon the Issuer's exercise under
Section 11.1 of the option applicable to this Section 11.3, the Issuer and, if
applicable, the Trustee and each Holder, shall be released from its obligations
under the covenants contained in Article VII, Sections 9.2 through Section 9.5
inclusive and Section 9.6, with respect to the Outstanding Senior Notes on and
after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Senior Notes shall thereafter be deemed to be
not "OUTSTANDING" for the purposes of any request, demand, authorization,
direction, notice, consent, waiver or other Act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be
deemed "OUTSTANDING" for all other purposes hereunder (it being understood that
such Senior Notes shall not be deemed Outstanding for financial accounting
purposes). For this purpose, such covenant defeasance means that, with respect
to the Outstanding Senior Notes, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 4.1(b) or 4.1(h), but, except as specified above, the remainder of this
Indenture and such Senior Notes shall be unaffected thereby.
SECTION 11.4. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 11.2 or
Section 11.3 to the Outstanding Senior Notes:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the
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benefit of the Holders of such Senior Notes, (1) cash in U.S. Dollars in an
amount, or (2) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, cash in U.S.
Dollars in an amount, or (3) a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge the principal of, premium and
Additional Interest, if any, and interest on the Outstanding Senior Notes on the
Stated Maturity or on the applicable optional Redemption Date, as the case may
be, of such principal or installment of principal of, premium and Additional
Interest, if any, and interest on the Senior Notes; provided that the Trustee
shall have been irrevocably instructed by the Issuer in writing to apply such
money or the proceeds of such U.S. Government Obligations to said payments with
respect to the Senior Notes;
(b) In the case of an election under Section 11.2, the Issuer shall
have delivered to the Trustee an Opinion of Counsel in the United States
confirming that (1) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (2) since the date hereof, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of the Outstanding Senior Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
(c) In the case of an election under Section 11.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel in the United States
confirming that the Holders of the Outstanding Senior Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(d) No Default or Event of Default with respect to the Senior Notes
shall have occurred and be continuing on the date of such deposit or, insofar as
Section 4.1(f) or Section 4.1(g) is concerned, at any time in the period ending
on the 91st day after the date of such deposit;
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(e) Such election under Section 11.2 or 11.3 shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or by
which the Issuer is bound;
(f) In the case of an election under either Section 11.2 or 11.3, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that after the 91st day following deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(g) In the case of an election under either Section 11.2 or 11.3, the
Issuer shall have delivered to the Trustee an Officers' Certificate stating that
the deposit made by the Issuer pursuant to its election under Section 11.2 or
11.3 was not made by the Issuer with the intent of preferring the Holders over
other creditors of the Issuer or with the intent of defeating, hindering,
delaying or defrauding creditors of the Issuer or others; and
(h) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating that
all conditions precedent provided for relating to either the defeasance under
Section 11.2 or the covenant defeasance under Section 11.3 (as the case may be)
have been complied with as contemplated by this Section 11.4.
SECTION 11.5. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
Section 2.5, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 11.5, the "Trustee") pursuant to Section 11.4 in
respect of the Outstanding Senior Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Senior Notes of all sums due and to become
due thereon in respect of principal, premium and Additional Interest, if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government
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Obligations deposited pursuant to Section 11.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Senior Notes.
Anything in this Article XI to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
Request any money or U.S. Government Obligations held by it as provided in
Section 11.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 11.4)
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
SECTION 11.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any United States dollars or U.S. Government Obligations in accordance
with Section 11.2 or 11.3 as the case may be, by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuer's obligations under this Indenture
and the Senior Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 11.2 or 11.3 as the case may be, until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 11.2 or 11.3, as the case may be; provided, however, that, if the
Issuer makes any payment of principal of, premium and Additional Interest, if
any, or interest on any Senior Note following the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of such
Senior Notes to receive such payment from the money held by the Trustee or
Paying Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first above written.
AFLAC Incorporated
By: /s/ XXXX X. XXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and Assistant
Chief Financial Officer
The Bank of New York, as Trustee
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
84
EXHIBIT A
[FORM OF FACE OF U.S. GLOBAL SENIOR NOTE]
THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SENIOR NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SENIOR NOTE BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SENIOR
NOTES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SENIOR NOTE, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SENIOR NOTE (OR ANY PREDECESSOR OF
SUCH SENIOR NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SENIOR NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SENIOR NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A
MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SENIOR NOTES, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE
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SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE
(D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM
THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A TO THE OFFERING
MEMORANDUM DATED APRIL 16, 1999. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY SENIOR NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SENIOR NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS SENIOR NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
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CUSIP No. ____________
Note No. ____________ Original Principal Amount U.S. $_______
THIS SENIOR NOTE IS A U.S. GLOBAL SENIOR NOTE WITHIN THE MEANING
OF
THE INDENTURE HEREINAFTER REFERRED TO.
AFLAC INCORPORATED
6 1/2% Senior Notes due 2009
AFLAC Incorporated, a corporation organized under the laws of Georgia,
promises to pay to the registered holder of this Senior Note, or its registered
assigns, the principal sum of U.S. $____ (or such other amount as reflected in
the records of the Trustee), on April 15, 2009.
Interest Payment Dates: April 15 and October 15, commencing
October 15, 1999.
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Additional provisions of this U.S. Global Senior Note are set forth
on the other side of this Senior Note.
Dated: April ___, 1999
AFLAC INCORPORATED
By:____________________
By:____________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this
is the U.S. Global Senior Note
referred to in the Indenture.
------------------------
Authorized Officer
88
[FORM OF REVERSE OF U.S. GLOBAL SENIOR NOTE]
AFLAC INCORPORATED
6 1/2% Senior Notes due 2009
1. Interest
a. AFLAC Incorporated, a corporation organized under the laws of
Georgia (such company, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "ISSUER"), promises to pay
interest on the principal amount of this Senior Note to the registered holder
hereof at the rate per annum shown above.
[b. Interest on this Senior Note shall accrue at the rate of 6 1/2% per
annum and is payable semiannually in arrears on April 15 and October 15 of each
year, commencing on October 15, 1999. In the event that the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
day following the Issue Date, the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Issue Date or the
Exchange Offer is not consummated and a Shelf Registration Statement is not
declared effective on or prior to the 210th day following the Issue Date (or if
the 90th, 180th or 210th day is not a Business Day, the first Business Day
thereafter), interest will accrue (in addition to stated interest on the Senior
Notes) from and including the next day following such 90- 180- or 210-day
period. Such additional interest (the "ADDITIONAL INTEREST") will be payable in
cash semiannually in arrears each April 15 and October 15, at a rate per annum
equal to 0.25% of the principal amount of the Senior Notes, for each event
described in the preceding sentence; provided, however, that the aggregate
amount of Additional Interest payable pursuant to the above provisions shall in
no event exceed 0.75% per annum of the principal amount of the Senior Notes.
Upon the filing of the Exchange Offer Registration Statement, the effectiveness
of the Exchange Offer Registration Statement, the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after such 90- 180- or 210-day period, the Additional Interest payable on
the Senior Notes from the date of such filing, effectiveness or consummation, as
the case may be, will cease to accrue and all accrued and unpaid Additional
Interest as of such occurrence shall be paid to the Holders.
Notwithstanding the fact that any Senior Notes for which Additional
Interest is due cease to be Transfer Restricted Securities (as defined in the
Registration Rights Agreement),
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all obligations of the Issuer to pay Additional Interest with respect to such
Senior Notes shall survive until such time as such obligations with respect to
such Senior Notes shall have been satisfied in full.
In the event that a Shelf Registration Statement is declared
effective pursuant to the preceding paragraph, if the Issuer fails to keep such
Registration Statement continuously effective for the period required by the
Registration Rights Agreement, or if the Shelf Registration Statement fails to
be usable for its intended purpose without being succeeded by a post-effective
amendment to such Shelf Registration Statement that cures such failure and that
is itself declared effective within 10 days of filing such post-effective
amendment to such Shelf Registration Statement, then from such time as the Shelf
Registration Statement is no longer effective or usable, as the case may be,
until the earlier of (i) the date that the Shelf Registration Statement is again
deemed effective or usable, as the case may be, (ii) the date that is the second
anniversary of the Issue Date or (iii) the date as of which all of the Senior
Notes are sold pursuant to the Shelf Registration Statement, Additional Interest
shall accrue at a rate per annum equal to 0.25% of the principal amount of the
Senior Notes and shall be payable in cash semiannually in arrears each April 15
and October 15.
All accrued Additional Interest shall be paid to Holders by the
Issuer in the same manner as interest is paid pursuant to the Indenture. The
aggregate amount of Additional Interest payable pursuant to this Section 1(b)
shall in no event exceed 0.75% per annum of the principal amount of Senior
Notes.](1)
b. Interest on this Senior Note shall accrue from the most recent date
to which interest has been paid on the Senior Note for which this Senior Note
was exchanged or, if no interest has been paid on such Senior Note, from the
Issue Date, at the rate of 6 1/2% per annum and shall be payable in cash
semiannually in arrears on April 15 and October 15 of each year, commencing on
October 15, 1999. There shall also be payable in respect of this Senior Note all
Additional Interest that may have accrued on the Senior Note for which this
Senior Note was exchanged (as calculated in accordance with the terms of such
Senior Note) pursuant to the Exchange Offer or otherwise pursuant to a
registration of such Senior Note under the Securities Act, such Additional
Interest to be payable at the same time and in the same manner as the periodic
interest on this Senior Note.](2)
--------------
1. To be included in Senior Notes which are not Exchange Notes.
2. To be included in Exchange Notes.
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c. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Issuer shall pay interest at the applicable interest
rate on the Senior Notes on overdue principal, interest (to the extent lawful)
or premium or Additional Interest, if any, on demand.
2. Method of Payment
The Issuer through the Paying Agent shall pay interest on this
Senior Note to the registered holder of this Senior Note or as instructed in
writing by such Holder. The Holder must surrender this Senior Note to the Paying
Agent to collect principal payments. The Issuer shall pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation
(the "TRUSTEE"), will act as Paying Agent and Registrar. The Issuer may appoint
and change any Paying Agent, Registrar, co-registrar or transfer agent without
prior notice. The Issuer may act as Paying Agent, Registrar, co-registrar or
transfer agent to the Holder.
4. Indenture
The Issuer issued this Senior Note under an Indenture, dated as of
April 21, 1999 (the "INDENTURE"), between the Issuer and the Trustee. The terms
of this Senior Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "ACT").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. This Senior Note is subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement of those
terms.
This Senior Note is a senior unsecured obligation of the Issuer
limited to $450,000,000 aggregate principal amount at maturity (subject to
Section 2.8 of the Indenture).
5. Optional Redemption
a. This Senior Note is subject to redemption in whole or in part, at
any time and from time to time, upon not less than 30 nor more than 60 days'
notice, in an amount of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the sum of (i) 100%
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91
of the principal amount, together with accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date, and (ii) the Make-Whole
Amount, if any, as provided in the Indenture.
b. This Senior Note is not subject to redemption through operation of
a sinking fund.
6. Notice of Redemption
Notice of redemption shall be mailed not less than 30 nor more than 60
days prior to the Redemption Date to the registered holder of this Senior Note
at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 11 East, New York, New York
10286, or at any other address provided to the Trustee in writing by the
registered holder of this Senior Note. Senior Notes in denominations larger than
$1,000 of principal amount at maturity may be redeemed in part but only in whole
multiples of $1,000 at maturity. In the event of a redemption of less than all
of the Senior Notes, the Senior Notes for redemption will be chosen by the
Trustee in accordance with the Indenture. If any Senior Note is redeemed
subsequent to a record date with respect to any Interest Payment Date specified
above and/or prior to such Interest Payment Date, then any accrued interest will
be paid to the Holder at the close of business on such record date. If money
sufficient to pay the Redemption Price of and accrued interest on all Senior
Notes (or portions thereof) to be redeemed on the Redemption Date is deposited
with the Paying Agent on or before the Redemption Date and certain other
conditions are satisfied, on and after such date interest will cease to accrue
on such Senior Notes (or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
This Senior Note is in registered form without coupons. This Senior Note
is in an aggregate principal amount of $_________ (or such other amount as
reflected in the records of the Trustee) (subject to adjustment as provided in
the Indenture). The Holder may only transfer or exchange this Senior Note in
accordance with the Indenture.
8. Persons Deemed Owners
The registered holder of this Senior Note will be treated as the owner of
it for all purposes.
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9. Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time, upon
compliance by the Issuer with certain conditions set forth in the
Indenture, of (a) the entire indebtedness of the Issuer with respect to
this Senior Note and (b) certain restrictive covenants and the related
Defaults and Events of Default.
10. Amendment; Waiver
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Senior Notes outstanding at the time of
amendment or modification. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Senior
Notes at any time outstanding, on behalf of the Holders of all the Senior Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future holders of this
Senior Note and of any Senior Note issued in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Senior Note.
11. Defaults and Remedies
This Senior Note has the Events of Default as set forth in Section 4.1 of
the Indenture. If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Senior Notes, subject to
certain limitations, may declare all the Senior Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
and shall result in the Senior Notes being due and payable immediately upon the
occurrence of such Events of Default.
Holders may not enforce the Indenture or the Senior Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Senior Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Senior
Notes may direct the Trustee in its exercise of any trust or power. The Holders
of a majority in principal amount of the Senior Notes then outstanding by
written notice to the Trustee may rescind a declaration of acceleration if the
rescission is prior to a judgment or decree for payment and if all Events of
Default have been cured or waived except nonpayment of principal and interest
that has been due solely
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93
because of the acceleration. The Trustee may withhold from Holders notice of any
continuing Default (except a default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders. The above
description of Events of Default and remedies is qualified by reference, and
subject in its entirety, to the more complete description thereof contained in
the Indenture.
12. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of this Senior Note and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or such other agent may do the same with
like rights.
13. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Issuer,
shall not have any liability for any payment of the principal of, or premium or
Additional Interest, if any, or interest on, any of the Senior Notes or any
other obligations of the Issuer under this Senior Note or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting this Senior Note, the registered holder of this Senior
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of this Senior Note.
14. Authentication
This Senior Note shall not be valid until an authorized officer of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Senior Note.
15. Governing Law
The internal laws of the State of New York shall govern the Indenture and
this Senior Note.
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The Issuer will furnish to the Holder of this Senior Note upon written
request and without charge to the Holder a copy of the Indenture. Requests may
be made to:
AFLAC Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Investor Relations Department
Telephone: (000) 000-0000
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
-------------------------------------------------------------------------------
the within Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing _______________________ attorney to transfer said
Senior Note on the books of the Issuer with full power of substitution in the
premises.
In connection with any transfer of this Senior Note occurring (i)
in the case of a U.S. Certificated Senior Note or U.S. Global Senior
Note, prior to the Resale Restriction Termination Date, (ii) in the case
of a Reg S Certificated Senior Note or Reg S Global Senior Note, prior to
the expiration of the Distribution Compliance Period, or (iii) prior to
the date of an effective registration under the Securities Act, the
undersigned confirms that without utilizing any general solicitation or
general advertising that:
[Check One]
[ ](a) This Senior Note is being transferred in compliance with the
exemption from registration under the Securities Act, provided by
Rule 144A thereunder.
or
[ ](b) This Senior Note is being transferred in an offshore transaction
in compliance with Rule 904 of the Securities Act.
or
[ ](c) This Senior Note is being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act), that has furnished to the Trustee a
signed letter containing certain representations and agreements.
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or
[ ](d) This Senior Note is being transferred other than in accordance
with (a), (b) or (c) above and documents are being furnished which
comply with the conditions for transfer set forth in this Senior
Note and the Indenture.
If none of the foregoing boxes is checked the Trustee or other Registrar shall
refuse to register this Senior Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date: ______________________ ________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Senior Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is
a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance an Rule 144A and
acknowledges that it has received such information regarding the Issuer
as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor
is relying upon the undersigned's foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
Date: ______________________ __________________________
NOTICE: To be executed by an
executive officer of the transferee.
97
SCHEDULE OF INCREASE OR DECREASE IN GLOBAL SENIOR NOTE
The following increases or decreases in this Global Senior Note have been made:
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Principal
Amount of Amount of Amount of
Decrease in Increase in Global Senior
Principal Principal Note Signature of
Amount of this Amount of following Authorized
Date of Global Senior this Global such Increase Signatory of
Exchange Note Senior Note or Decrease Trustee
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EXHIBIT B
[FORM OF FACE OF REG S GLOBAL SENIOR NOTE]
THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE
ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
("REGULATION S"), (2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SENIOR NOTE, PRIOR TO THE DATE WHICH IS 40 DAYS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SENIOR NOTE (OR ANY
PREDECESSOR OF SUCH SENIOR NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SENIOR NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SENIOR NOTE FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SENIOR NOTES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
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DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT
THE TRANSFEROR DELIVER TO THE TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY
IN THE FORM OF APPENDIX A TO THE OFFERING MEMORANDUM DATED APRIL 16, 1999. THIS
LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE
LATER OF (A) THE DAY ON WHICH THE SENIOR NOTES ARE OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE
ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY SENIOR NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS SENIOR NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS SENIOR NOTE SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF.
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ISIN No.
Note No. _____________ Original Principal Amount U.S. $_______
THIS SENIOR NOTE IS A REG S GLOBAL SENIOR NOTE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO.
AFLAC INCORPORATED
6 1/2% Senior Notes due 2009
AFLAC Incorporated, a corporation organized under the laws of
Georgia, promises to pay to the registered holder of this Senior Note, or its
registered assigns, the principal sum of U.S. $____ (or such other amount as
reflected in the records of the Trustee), on April 15, 2009.
Interest Payment Dates: April 15 and October 15, commencing October
15, 1999.
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101
Additional provisions of this Reg S Global Senior Note are set
forth on the other side of this Senior Note.
Dated: April ___, 1999.
AFLAC INCORPORATED
By:____________________
By:____________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this
is the Reg S Global Senior Note
referred to in the Indenture.
------------------------
Authorized Officer
102
[FORM OF REVERSE OF REG S GLOBAL SENIOR NOTE]
AFLAC INCORPORATED
6 1/2% Senior Notes due 2009
1. Interest
a. AFLAC Incorporated, a corporation organized under the laws of
Georgia (such company, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "ISSUER"), promises to
pay interest on the principal amount of this Senior Note to the
registered holder hereof at the rate per annum shown above.
[b. Interest on this Senior Note shall accrue at the rate of 6
1/2% per annum and is payable semiannually on April 15 and October 15 of
each year, commencing on October 15, 1999. In the event that the
Exchange Offer Registration Statement is not filed with the Commission on
or prior to the 90th day following the Issue Date, the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th
day following the Issue Date or the Exchange Offer is not consummated and
a Shelf Registration Statement is not declared effective on or prior to
the 210th day following the Issue Date (or if the 90th, 180th or 210th
day is not a Business Day, the first Business Day thereafter), interest
will accrue (in addition to stated interest on the Senior Notes) from and
including the next day following such 90- 180- or 210-day period. Such
additional interest (the "ADDITIONAL INTEREST") will be payable in cash
semiannually in arrears each April 15 and October 15, at a rate per annum
equal to 0.25% of the principal amount of the Senior Notes, for each
event described in the preceding sentence; provided, however, that the
aggregate amount of Additional Interest payable pursuant to the above
provisions shall in no event exceed 0.75% per annum of the principal
amount of the Senior Notes. Upon the filing of the Exchange Offer
Registration Statement, the effectiveness of the Exchange Offer
Registration Statement, the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement, as the case may be,
after such 90- 180- or 210-day period, the Additional Interest payable on
the Senior Notes from the date of such filing, effectiveness or
consummation, as the case may be, will cease to accrue and all accrued
and unpaid Additional Interest as of such occurrence shall be paid to the
Holders.
Notwithstanding the fact that any Senior Notes for which Additional
Interest is due cease to be Transfer Restricted Securities (as defined in
the Registration Rights Agreement),
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all obligations of the Issuer to pay Additional Interest with respect to such
Senior Notes shall survive until such time as such obligations with respect to
such Senior Notes shall have been satisfied in full.
In the event that a Shelf Registration Statement is declared effective
pursuant to the preceding paragraph, if the Issuer fails to keep such
Registration Statement continuously effective for the period required by the
Registration Rights Agreement, or if the Shelf Registration Statement fails to
be usable for its intended purpose without being succeeded by a post-effective
amendment to such Shelf Registration Statement that cures such failure and that
is itself declared effective within 10 days of filing such post-effective
amendment to such Shelf Registration Statement, then from such time as the Shelf
Registration Statement is no longer effective or usable, as the case may be,
until the earlier of (i) the date that the Shelf Registration Statement is again
deemed effective or usable, as the case may be, (ii) the date that is the second
anniversary of the Issue Date or (iii) the date as of which all of the Senior
Notes are sold pursuant to the Shelf Registration Statement, Additional Interest
shall accrue at a rate per annum equal to 0.25% of the principal amount of the
Senior Notes and shall be payable in cash semiannually in arrears each April 15
and October 15.
All accrued Additional Interest shall be paid to Holders by the
Issuer in the same manner as interest is paid pursuant to the Indenture. The
aggregate amount of Additional Interest payable pursuant to this Section 1(b)
shall in no event exceed 0.75% per annum of the principal amount of Senior
Notes.](1)
[b. Interest on this Senior Note shall accrue from the most recent date
to which interest has been paid on the Senior Note for which this Senior Note
was exchanged or, if no interest has been paid on such Senior Note, from the
Issue Date, at the rate of 6 1/2% per annum and shall be payable in cash
semiannually in arrears on April 15 and October 15 of each year, commencing on
October 15, 1999. There shall also be payable in respect of this Senior Note all
Additional Interest that may have accrued on the Senior Note for which this
Senior Note was exchanged (as calculated in accordance with the terms of such
Senior Note) pursuant to the Exchange Offer or otherwise pursuant to a
registration of such Senior Note under the Securities Act, such Additional
Interest to be payable at the same time and in the same manner as the periodic
interest on this Senior Note.](2)
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1. To be included in Senior Notes which are not Exchange Notes.
2. To be included in Exchange Notes.
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c. Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest at the applicable interest rate on
the Senior Notes on overdue principal, interest (to the extent lawful) or
premium or Additional Interest, if any, on demand.
2. Method of Payment
The Issuer through the Paying Agent shall pay interest on this Senior Note
to the registered Holder of this Senior Note or as instructed in writing by such
Holder. The Holder must surrender this Senior Note to the Paying Agent to
collect principal payments. The Issuer shall pay principal and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts.
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation (the
"TRUSTEE"), will act as Paying Agent and Registrar. The Issuer may appoint and
change any Paying Agent, Registrar, co-registrar or transfer agent without prior
notice. The Issuer may act as Paying Agent, Registrar, co-registrar or transfer
agent to the Holder.
4. Indenture
The Issuer issued this Senior Note under an Indenture, dated as of April
21, 1999, (the "INDENTURE"), between the Issuer and the Trustee. The terms of
this Senior Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "ACT").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. This Senior Note is subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement of those
terms.
This Senior Note is a senior unsecured obligation of the Issuer limited to
$450,000,000 aggregate principal amount at maturity (subject to Section 2.8 of
the Indenture).
5. Optional Redemption
a. This Senior Note is subject to redemption in whole or in part, at
any time and from time to time, upon not less than 30 nor more than 60 days'
notice, in an amount of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the sum of (i) 100%
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of the principal amount, together with accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date and (ii) the Make-Whole
Amount, if any, as provided in the Indenture.
b. This Senior Note is not subject to redemption through operation of a
sinking fund.
6. Notice of Redemption
Notice of redemption shall be mailed not less than 30 nor more than 60
days prior to the Redemption Date to the registered holder of this Senior Note
at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 11 East, New York, New York
10286, or at any other address provided to the Trustee in writing by the
registered holder of this Senior Note. Senior Notes in denominations larger than
$1,000 of principal amount at maturity may be redeemed in part but only in whole
multiples of $1,000 at maturity. In the event of a redemption of less than all
of the Senior Notes, the Senior Notes for redemption will be chosen by the
Trustee in accordance with the Indenture. If any Senior Note is redeemed
subsequent to a record date with respect to any Interest Payment Date specified
above and/or prior to such Interest Payment Date, then any accrued interest will
be paid to the Holder at the close of business on such record date. If money
sufficient to pay the Redemption Price of and accrued interest on all Senior
Notes (or portions thereof) to be redeemed on the Redemption Date is deposited
with the Paying Agent on or before the Redemption Date and certain other
conditions are satisfied, on and after such date interest will cease to accrue
on such Senior Notes (or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
This Senior Note is in registered form without coupons. This Senior Note
is in an aggregate principal amount of $__ (or such other amount as reflected in
the records of the Trustee) (subject to adjustment as provided in the
Indenture). The Holder may only transfer or exchange this Senior Note in
accordance with the Indenture.
8. Persons Deemed Owners
The registered holder of this Senior Note will be treated as the owner of
it for all purposes.
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9. Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time, upon
compliance by the Issuer with certain conditions set forth in the Indenture, of
(a) the entire indebtedness of the Issuer with respect to this Senior Note and
(b) certain restrictive covenants and the related Defaults and Events of
Default.
10. Amendment; Waiver
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Senior Notes outstanding at the time of
amendment or modification. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Senior
Notes at any time outstanding, on behalf of the Holders of all the Senior Notes,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder shall be conclusive and binding
upon such Holder and upon all future Holders and of any Senior Note issued in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Senior Note.
11. Defaults and Remedies
This Senior Note has the Events of Default as set forth in Section 4.1 of
the Indenture. If an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Senior Notes, subject to
certain limitations, may declare all the Senior Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
and shall result in the Senior Notes being due and payable immediately upon the
occurrence of such Events of Default.
Holders may not enforce the Indenture or the Senior Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Senior Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Senior
Notes may direct the Trustee in its exercise of any trust or power. The Holders
of a majority in principal amount of the Senior Notes then outstanding by
written notice to the Trustee may rescind a declaration of acceleration if the
rescission is prior to a judgment or decree for payment and if all Events of
Default have been cured or waived except nonpayment of principal and interest
that has been due solely
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because of the acceleration. The Trustee may withhold from Holders notice of any
continuing Default (except a default in payment of principal or interest) if it
determines that withholding notice is in the interest of the Holders. The above
description of Events of Default and remedies is qualified by reference, and
subject in its entirety, to the more complete description thereof contained in
the Indenture.
12. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of this Senior Note and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee. Any Paying Agent, Registrar or such other agent may do the same with
like rights.
13. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Issuer,
shall not have any liability for any payment of the principal of, or premium or
Additional Interest, if any, or interest on, any of the Senior Notes or any
other obligations of the Issuer under this Senior Note or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting this Senior Note, the registered holder of this Senior
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of this Senior Note.
14. Authentication
This Senior Note shall not be valid until an authorized officer of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Senior Note.
15. Governing Law
The internal laws of the State of New York shall govern the Indenture and
this Senior Note.
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The Issuer will furnish to the Holder upon written request and without
charge to the Holder a copy of the Indenture. Requests may be made to:
AFLAC Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Investor Relations Department
Telephone: (000) 000-0000
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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Please print or typewrite name and address including zip code of assignee
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the within Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing _______________________ attorney to transfer said
Senior Note on the books of the Issuer with full power of substitution in the
premises.
In connection with any transfer of this Senior Note occurring (i) in the
case of a U.S. Certificated Senior Note or U.S. Global Senior Note, prior to the
Resale Restriction Termination Date, (ii) in the case of a Reg S Certificated
Senior Note or Reg S Global Senior Note, prior to the expiration of the
Distribution Compliance Period, or (iii) prior to the date of an effective
registration under the Securities Act, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ](a) This Senior Note is being transferred in compliance with the
exemption from registration under the Securities Act, provided by
Rule 144A thereunder.
or
[ ](b) This Senior Note is being transferred in an offshore transaction
in compliance with Rule 904 of the Securities Act.
or
[ ](c) This Senior Note is being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act), that has furnished to the Trustee a
signed letter containing certain representations and agreements.
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or
[ ](d) This Senior Note is being transferred other than in accordance
with (a), (b) or (c) above and documents are being furnished which
comply with the conditions for transfer set forth in this Senior
Note and the Indenture.
If none of the foregoing boxes is checked the Trustee or other Registrar shall
refuse to register this Senior Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 2.13 of the Indenture shall have
been satisfied.
Date: ______________________ ________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Senior
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "QUALIFIED
INSTITUTIONAL BUYER" within the meaning of Rule 144A and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Issuer as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Date: ______________________ __________________________
NOTICE: To be executed by an
executive officer of the transferee.
111
SCHEDULE OF INCREASE OR DECREASE IN REG S GLOBAL SENIOR NOTE
The following increases or decreases in this Reg S Global Senior Note have been
made:
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Amount of Principal
Amount of Increase in Amount of Reg
Decrease in Principal S Global
Principal Amount of Senior Note Signature of
Amount of this this Reg S following Authorized
Date of Reg S Global Global such Increase Signatory of
Exchange Senior Note Senior Note or Decrease Trustee
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EXHIBIT C
[FORM OF FACE OF CERTIFICATED SENIOR NOTE]
[THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SENIOR NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SENIOR NOTE BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SENIOR
NOTES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SENIOR NOTE, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SENIOR NOTE (OR ANY PREDECESSOR OF
SUCH SENIOR NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SENIOR NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SENIOR NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A
MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SENIOR NOTES, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
1
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TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER
TO THE TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF
APPENDIX A TO THE OFFERING MEMORANDUM DATED APRIL 16, 1999. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.](1)
[THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE
ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
("REGULATION S"), (2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SENIOR NOTE, PRIOR TO THE DATE WHICH IS 40 DAYS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SENIOR NOTE (OR ANY
PREDECESSOR OF SUCH SENIOR NOTE), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SENIOR NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SENIOR NOTE FOR ITS OWN ACCOUNT, OR FOR THE
-----------------
1. To be included in U.S. Certificated Senior Notes.
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ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF THE SENIOR NOTES OF $250,000, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND
(ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUSTEE A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX A TO
THE OFFERING MEMORANDUM DATED APRIL 16, 1999. THIS LEGEND WILL BE REMOVED AFTER
40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH
THE SENIOR NOTES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN
REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S.](2)
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2. To be included in Reg S Certificated Senior Notes.
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[CUSIP][ISIN] No.___________
Note No. _____________ Original Principal Amount U.S. $_______
THIS SENIOR NOTE IS A CERTIFICATED SENIOR NOTE
WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO.
AFLAC INCORPORATED
6 1/2% Senior Notes due 2009
AFLAC Incorporated, a corporation organized under the laws of Georgia,
promises to pay to the registered holder of this Senior Note, or its registered
assigns, the principal sum of U.S. $__________ (or such other amount as
reflected in the records of the Trustee), on April 15, 2009.
Interest Payment Dates: April 15 and October 15, commencing
October 15, 1999.
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Additional provisions of this Senior Note are set forth on the
other side of this Senior Note.
Dated: ______________
AFLAC INCORPORATED
By:
----------------
By:
----------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies that this
is one of the Certificated Senior
Notes referred to in the Indenture.
-----------------------------
Authorized Officer
117
[FORM OF REVERSE OF CERTIFICATED SENIOR NOTE]
AFLAC INCORPORATED
6 1/2% Senior Notes due 2009
1. Interest
a. AFLAC Incorporated, a corporation organized under the laws of
Georgia (such company, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "ISSUER"), promises to pay
interest on the principal amount of this Senior Note to the registered holder
hereof at the rate per annum shown above.
[b. Interest on this Senior Note shall accrue at the rate of 6 1/2% per
annum and is payable semiannually in arrears on April 15 and October 15 of each
year, commencing on October 15, 1999. In the event that the Exchange Offer
Registration Statement is not filed with the Commission on or prior to the 90th
day following the Issue Date, the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Issue Date or the
Exchange Offer is not consummated and a Shelf Registration Statement is not
declared effective on or prior to the 210th day following the Issue Date (or if
the 90th, 180th or 210th day is not a Business Day, the first Business Day
thereafter), interest will accrue (in addition to stated interest on the Senior
Notes) from and including the next day following such 90- 180- or 210-day
period. Such additional interest (the "ADDITIONAL INTEREST") will be payable in
cash semiannually in arrears each April 15 and October 15, at a rate per annum
equal to 0.25% of the principal amount of the Senior Notes, for each event
described in the preceding sentence; provided, however, that the aggregate
amount of Additional Interest payable pursuant to the above provisions shall in
no event exceed 0.75% per annum of the principal amount of the Senior Notes.
Upon the filing of the Exchange Offer Registration Statement, the effectiveness
of the Exchange Offer Registration Statement, the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after such 90- 180- or 210-day period, the Additional Interest payable on
the Senior Notes from the date of such filing, effectiveness or consummation, as
the case may be, will cease to accrue and all accrued and unpaid Additional
Interest as of such occurrence shall be paid to the Holders.
Notwithstanding the fact that any Senior Notes for which Additional
Interest is due cease to be Transfer Restricted Securities (as defined in the
Registration Rights Agreement), all obligations of the Issuer to pay Additional
Interest with respect to such Senior Notes shall
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survive until such time as such obligations with respect to such Senior Notes
shall have been satisfied in full.
In the event that a Shelf Registration Statement is declared effective
pursuant to the preceding paragraph, if the Issuer fails to keep such
Registration Statement continuously effective for the period required by the
Registration Rights Agreement, or if the Shelf Registration Statement fails to
be usable for its intended purpose without being succeeded by a post-effective
amendment to such Shelf Registration Statement that cures such failure and that
is itself declared effective within 10 days of filing such post-effective
amendment to such Shelf Registration Statement, then from such time as the Shelf
Registration Statement is no longer effective or usable, as the case may be,
until the earlier of (i) the date that the Shelf Registration Statement is again
deemed effective or usable, as the case may be, (ii) the date that is the second
anniversary of the Issue Date or (iii) the date as of which all of the Senior
Notes are sold pursuant to the Shelf Registration Statement, Additional Interest
shall accrue at a rate per annum equal to 0.25% of the principal amount of the
Senior Notes and shall be payable in cash semiannually in arrears each April 15
and October 15.
All accrued Additional Interest shall be paid to Holders by the Issuer in
the same manner as interest is paid pursuant to the Indenture. The aggregate
amount of Additional Interest payable pursuant to this Section 1(b) shall in no
event exceed 0.75% per annum of the principal amount of Senior Notes.](3)
[b. Interest on this Senior Note shall accrue from the most recent date
to which interest has been paid on the Senior Note for which this Senior Note
was exchanged or, if no interest has been paid on such Senior Note, from the
Issue Date, at the rate of 6 1/2% per annum and shall be payable in cash
semiannually in arrears on April 15 and October 15 of each year, commencing on
October 15, 1999. There shall also be payable in respect of this Senior Note all
Additional Interest that may have accrued on the Senior Note for which this
Senior Note was exchanged (as calculated in accordance with the terms of such
Senior Note) pursuant to the Exchange Offer or otherwise pursuant to a
registration of such Senior Note under the Securities Act, such Additional
Interest to be payable at the same time and in the same manner as the periodic
interest on this Senior Note.](4)
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3. To be included in Senior Notes which are not Exchange Notes.
4. To be included in Exchange Notes.
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c. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Issuer shall pay interest at the applicable interest
rate on the Senior Notes on overdue principal, interest (to the extent lawful)
or premium or Additional Interest, if any, on demand.
2. Method of Payment
The Issuer through the Paying Agent shall pay interest on this Senior Note
to the registered holder of this Senior Note or as instructed in writing by such
Holder. The Holder must surrender this Senior Note to the Paying Agent to
collect principal payments. The Issuer shall pay principal and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts.
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking corporation (the
"TRUSTEE"), will act as Paying Agent and Registrar. The Issuer may appoint and
change any Paying Agent, Registrar, co-registrar or transfer agent without prior
notice. The Issuer may act as Paying Agent, Registrar, co-registrar or transfer
agent to the Holder.
4. Indenture
The Issuer issued this Senior Note under an Indenture, dated as of
April 21, 1999 (the "INDENTURE"), between the Issuer and the Trustee. The terms
of this Senior Note include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
sections 77aaa-77bbbb) as in effect on the date of the Indenture (the "ACT").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. This Senior Note is subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement of those
terms.
The Senior Notes are senior unsecured obligations of the Issuer limited to
$450,000,000 aggregate principal amount at maturity (subject to Section 2.8 of
the Indenture).
5. Optional Redemption
a. This Senior Note is subject to redemption in whole or in part, at
any time and from time to time, upon not less than 30 nor more than 60 days'
notice, in an amount of $1,000 or an integral multiple of $1,000, at a
Redemption Price equal to the sum of (i) 100%
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120
of the principal amount, together with accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date, and (ii) the Make-Whole
Amount, if any, as provided in the Indenture.
b. This Senior Note is not subject to redemption through
operation of a sinking fund.
6. Notice of Redemption
Notice of redemption shall be mailed not less than 30 nor more than 60
days prior to the Redemption Date to the registered holders of the Senior Notes
at the addresses provided to the Trustee in writing by the Holders on the date
of issuance of such Senior Notes or on the dates of any subsequent transfers of
such Senior Notes or at any address provided to the Trustee in writing by such
Holders. Senior Notes in denominations larger than $1,000 of principal amount at
maturity may be redeemed in part but only in whole multiples of $1,000 at
maturity. In the event of a redemption of less than all of the Senior Notes, the
Senior Notes for redemption will be chosen by the Trustee in accordance with the
Indenture. If any Senior Note is redeemed subsequent to a record date with
respect to any Interest Payment Date specified above and/or prior to such
Interest Payment Date, then any accrued interest will be paid to the Holder at
the close of business on such record date. If money sufficient to pay the
Redemption Price of and accrued interest on all Senior Notes (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent on or before the Redemption Date and certain other conditions are
satisfied, on and after such date interest will cease to accrue on such Senior
Notes (or such portions thereof) called for redemption.
7. Denominations; Transfer; Exchange
This Senior Note is in registered form without coupons. The Holder may
only transfer or exchange this Senior Note in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange any Senior Notes selected for redemption (except, in the case of a
Senior Note to be redeemed in part, the portion of the Senior Notes need not be
redeemed) or any Senior Notes for a period of 15 days before a selection of
Senior Notes to be redeemed.
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8. Persons Deemed Owners
The registered holder of this Senior Note will be treated as the owner of
it for all purposes.
9. Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time, upon
compliance by the Issuer with certain conditions set forth in the
Indenture, of (a) the entire indebtedness of the Issuer with respect to
this Senior Note and (b) certain restrictive covenants and the related
Defaults and Events of Default.
10. Amendment; Waiver
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations
of the Issuer and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Senior Notes outstanding at
the time of amendment or modification. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Senior Notes at any time outstanding, on behalf
of the Holders of all the Senior Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by or
on behalf of the Holder shall be conclusive and binding upon such Holder
and upon all future Holders and of any Senior Note issued in exchange
therefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Senior Note.
11. Defaults and Remedies
This Senior Note has the Events of Default as set forth in Section
4.1 of the Indenture. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the
Senior Notes, subject to certain limitations, may declare all the Senior
Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default and shall result in the Senior Notes
being due and payable immediately upon the occurrence of such Events of
Default.
Holders may not enforce the Indenture or the Senior Notes except as
provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Senior Notes unless it receives reasonable indemnity or
security. Subject to certain limitations, Holders of a majority in
principal amount of the Senior Notes may direct the Trustee in its
exercise of any
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trust or power. The Holders of a majority in principal amount of the Senior
Notes then outstanding by written notice to the Trustee may rescind a
declaration of acceleration if the rescission is prior to a judgment or decree
for payment and if all Events of Default have been cured or waived except
nonpayment of principal and interest that has been due solely because of the
acceleration. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in the interest of the Holders. The above description
of Events of Default and remedies is qualified by reference, and subject in its
entirety, to the more complete description thereof contained in the Indenture.
12. Trustee Dealings with the Issuer
Subject to certain limitations imposed by the Act, the Trustee
under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of this Senior Note and may otherwise deal with and
collect obligations owed to it by the Issuer or its Affiliates and may
otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar or such
other agent may do the same with like rights.
13. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Issuer, shall not have any liability for any payment of the principal of,
or premium or Additional Interest, if any, or interest on, any of the
Senior Notes or any other obligations of the Issuer under this Senior
Note or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting this Senior
Note, the registered holder of this Senior Note waives and releases all
such liability. The waiver and release are part of the consideration for
the issuance of this Senior Note.
14. Authentication
This Senior Note shall not be valid until an authorized officer of
the Trustee (or an authenticating agent) manually signs the certificate
of authentication on the other side of this Senior Note.
15. Governing Law
The internal laws of the State of New York shall govern the
Indenture and this Senior Note.
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The Issuer will furnish to the Holder upon written request and without
charge to the Holder a copy of the Indenture. Requests may be made to:
AFLAC Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Investor Relations Department
Telephone: (000) 000-0000
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
-------------------------------------------------------------------------------
the within Senior Note and all rights thereunder, hereby irrevocably
constituting and appointing _______________________ attorney to transfer said
Senior Note on the books of the Issuer with full power of substitution in the
premises.
In connection with any transfer of this Senior Note occurring (i) in the
case of a U.S. Certificated Senior Note or U.S. Global Senior Note, prior to the
Resale Restriction Termination Date, (ii) in the case of a Reg S Certificated
Senior Note or Reg S Global Senior Note, prior to the expiration of the
Distribution Compliance Period, or (iii) prior to the date of an effective
registration under the Securities Act, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
[ ](a) This Senior Note is being transferred in compliance with the
exemption from registration under the Securities Act, provided by
Rule 144A thereunder.
or
[ ](b) This Senior Note is being transferred in an offshore transaction
in compliance with Rule 904 of the Securities Act.
or
[ ](c) This Senior Note is being transferred to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act), that has furnished to the Trustee a
signed letter containing certain representations and agreements.
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or
[ ](d) This Senior Note is being transferred other than in accordance
with (a), (b) or (c) above and documents are being furnished which
comply with the conditions for transfer set forth in this Senior
Note and the Indenture.
If none of the foregoing boxes is checked the Trustee or other Registrar
shall refuse to register this Senior Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such
transfer or registration set forth herein and in Section 2.13 of the
Indenture shall have been satisfied.
Date: ______________________ ________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Senior Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is
a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of Rule 144A and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer
as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor
is relying upon the undersigned's foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
Date: ______________________ __________________________
NOTICE: To be executed by an
executive officer of the transferee.
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EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS TO
INSTITUTIONAL ACCREDITED INVESTORS
[Date]
AFLAC Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed transfer of $
aggregate principal amount of the 6 1/2% Senior Notes due 2009 (the
"Senior Notes") of AFLAC Incorporated (the "Issuer"), we represent and
warrant to you that:
1. We understand that the Senor Notes have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), and, unless so registered, may not be sold except
as permitted in the following sentence. We agree on our own behalf
and on behalf of any investor account for which we are purchasing
Senior Notes to offer, sell or otherwise transfer such Senior Notes
prior to (x) the date which is two years (or such shorter period of
time as permitted by the Securities Act) after the later of the
date of original issue of the Senior Notes and the last date on
which the Issuer or any affiliate of the Issuer was the owner of
the Senior Notes or any predecessor of the Senior Notes and (y)
such later date, if any, as may be required by any subsequent
change in applicable law (the "Resale Restriction Termination
Date") only (a) to the Issuer, (b) pursuant to a registration
statement which has been declared effective under the Securities
Act, (c) so long as the Senior Notes are eligible for resale,
pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a
person we reasonably believe is a "qualified institutional buyer"
under Rule 144A (a "QIB") that purchases for its own account or for
the account of a QIB and to whom notice is given that the transfer
is being made in reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. persons that occur outside the United States
within the meaning of Regulation S under the Securities Act,(e) to
an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the
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Securities Act (an "Institutional Accredited Investor") that is purchasing
for its own account or for the account of an Institutional Accredited
Investor, in each case in a minimum principal amount of Senior Notes of
$250,000, or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject, in each of the
foregoing cases, to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all
times within our or their control and to compliance with any applicable
state securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Senior Notes is proposed to be made to an
Institutional Accredited Investor pursuant to clause (e) above prior to
the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
trustee, which shall provide, among other things, that the transferee is
an Institutional Accredited Investor and that it is acquiring such Senior
Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Issuer and the
trustee under the indenture governing the Senior Notes, reserve the right
prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Senior Notes pursuant to clause (d), (e) or (f)
above to require the delivery of an opinion of counsel, certification
and/or other information satisfactory to the Issuer and such trustee.
2. We are an Institutional Accredited Investor purchasing at
least $250,000 principal amount of Senior Notes for our own account
or for the account of one of more Institutional Accredited
Investors, and we are acquiring the Senior Notes for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act or the
securities law of any state of the United States, and we have such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the
Senior Notes, and we and any accounts for which we are acting are
each able
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to bear the economic risk of our or its investment in the Senior Notes
for an indefinite period.
Very truly yours,
[Transferee]
By: ________________________
Date:_______________________
Upon transfer, the Senior Notes would be registered in the name of
the new beneficial owner as follows:
Name: ____________________________
Address:__________________________
Taxpayer ID Number: _____________
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EXHIBIT E
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATIONS
[Date]
AFLAC Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed transfer of U.S. $____________ aggregate
principal amount of 6 1/2% Senior Notes due 2009 (the "Senior Notes") of AFLAC
Incorporated, we confirm that such transfer has been effected pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended
("Regulation S"), and, accordingly, we represent that:
1. The offer of the Senior Notes was not made to a person in
the United States.
2. Either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States or (ii) the transaction was executed in,
on or through the facilities of a designated off-shore securities
market and neither we nor any person acting on our behalf knows
that the transaction has been pre-arranged with a buyer in the
United States.
3. No directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S, as applicable.
4. The transaction is not part of a plan or scheme to evade
the registration requirements of the United States Securities Act
of 1933, as amended.
In addition, if the transfer is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that
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such transfer has been made in accordance with the applicable provisions of Rule
903(c)(3) or Rule 904(c)(1), as the case may be.
You and the trustee under the Indenture governing the Senior Notes are
entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Transferee]
By: ________________________
Date:_______________________
Upon transfer, the Senior Notes would be registered in the name of
the new beneficial owner as follows:
Name: ____________________________
Address:__________________________
Taxpayer ID Number: _____________