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LINCOLN NATIONAL CORPORATION AND SUBSIDIARIES
EXHIBIT 4(d) - FISCAL AGENCY AGREEMENT FOR
9 3/4% NOTES DUE OCTOBER 30, 1995, AND SPECIMEN NOTES
FISCAL AGENCY AGREEMENT
Between
LINCOLN NATIONAL CORPORATION
Issuer
and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Fiscal Agent
Dated as of October 20, 1988
U.S.$100,000,000
9 3/4% Notes Due 1995
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FISCAL AGENCY AGREEMENT, dated as of October 20, 1988, between
LINCOLN NATIONAL CORPORATION, a corporation duly organized and existing under
the laws of the State of Indiana ("Company"), and Morgan Guaranty Trust
Company of New York, a corporation duly organized and existing under the laws
of the State of New York, as Fiscal Agent.
1. The Company has, by a Subscription Agreement, dated September
29, 1988, between the Company and Credit Suisse First Boston Limited and the
other Managers named therein, agreed to issue U.S.$100,000,000 aggregate
principal amount of its 9 3/4% Notes Due 1995 (the "Securities"). The
Securities shall be issued initially in the form of a temporary global
security in bearer form, without coupons, substantially in the form of Exhibit
A hereto ("Global Security"). The Global Security will be exchangeable, as
provided below, for definitive Securities issuable as bearer Securities, in
the denomination of U.S.$5,000, with interest coupons attached ("coupons"),
and as registered Securities, without coupons, in denominations of U.S.$5,000
and integral multiples thereof, all substantially in the forms set forth in
Exhibit B hereto. The term "Securities" as used herein includes the Global
Security. The term "Holder", when used with respect to a bearer Security or
any coupon, means the bearer thereof and, when used with respect to-a
registered Security, means the person in whose name such Security is
registered in the Security Register (as defined in Section 3 hereof).
2. The Company hereby appoints Morgan Guaranty Trust Company of New
York, at present having its principal corporate trust office ("Principal
Office") at 30 West Broadway, New York, New York 10015, as its fiscal agent in
respect of the Securities upon the terms and subject to the conditions herein
set forth. (Morgan Guaranty Trust Company of New York and its successor or
successors as such fiscal agent qualified or appointed in accordance with
Section 8 hereof are herein called "Fiscal Agent".) The Fiscal Agent shall
have the powers and authority granted to and conferred upon it herein and in
the Securities and such further powers and authority, acceptable to it, to act
on behalf of the Company as the Company may hereafter grant to or confer upon
it. Any power or authority granted to the Fiscal Agent herein or hereafter by
the Company may be exercised by the Fiscal Agent or by any duly authorized
agent of the Fiscal Agent. As used herein, "paying agencies" shall mean
paying agencies (including the Fiscal Agent, if so appointed by the Company)
maintained by the Company as provided in Section 8(b) hereof.
3.
(a) The Securities shall be executed on behalf of the Company by its
Chairman, its President or one of its Vice Presidents ("executive officers"),
any of whose signatures may be manual or facsimile, under a facsimile of its
corporate seal reproduced thereon and attested by its Secretary or an
Assistant Secretary, any of whose signatures may be manual or facsimile.
Securities bearing the manual or facsimile signatures of persons who were at
any time the proper officers of the Company shall bind the Company,
notwithstanding that such persons or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of issue of such Securities.
(b) Registered Securities may be surrendered for registration of
transfer and may be exchanged for registered Securities, and bearer Securities
may be exchanged for registered Securities, all upon the terms and conditions
set forth in Paragraph 3 of the definitive Securities. Registered Securities
may not be exchanged for bearer Securities. The Company shall cause to be
kept at an office or agency in the Borough of Manhattan, The City of New York
a register (the register maintained in such office and in any other office or
agency for such purpose being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of registered
Securities and of transfers of registered Securities. The Company hereby
appoints the Fiscal Agent as "Security Registrar" for the purpose of
registering registered Securities and transfers of registered Securities as
herein provided. In addition, the Company has appointed the main offices of
Morgan Guaranty Trust Company of New York in London, England and Banque
Internationale a Luxembourg S.A. in Luxembourg as additional agencies where
Securities may be surrendered for registration of transfer or exchange.
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(c) The Fiscal Agent is hereby authorized, in accordance with the
provisions of Paragraph 9 of the definitive Securities and this Section, from
time to time to authenticate and deliver a security in exchange for or in lieu
of any Security or coupon, as the case may be, which becomes mutilated, lost,
stolen or destroyed. Each Security authenticated and delivered in exchange
for or in lieu of any such Security shall carry all the rights to interest
accrued and unpaid and to accrue which were carried by such Security.
(d) At any time when any of the Securities remain Outstanding, the
Fiscal Agent may appoint an authenticating agent or agents ("Authenticating
Agent or Agents") which shall be authorized to act on behalf of the Fiscal
Agent to authenticate Securities issued upon exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Fiscal Agency Agreement and shall be valid
obligations for all purposes as if authenticated by the Fiscal Agent here-
under. Wherever reference is made in this Fiscal Agency Agreement to the
authentication and delivery of Securities by the Fiscal Agent or the Fiscal
Agent's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Fiscal Agent by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Fiscal Agent by an Authenticating Agent; provided, however, that the
Global Security may only be authenticated by the Fiscal Agent. Each
Authenticating Agent shall be acceptable to the Company.
4.
(a) The Company initially shall execute and deliver the Global Security to the
Fiscal Agent, and the Fiscal Agent shall, upon the order of the Company signed
by an executive officer of the Company, authenticate the Global Security and
deliver the Global Security to The Chase Manhattan Bank, London Branch, as
common depositary (the "Common Depositary") for the benefit of the operator of
the Euro-clear System ("EURO-CLEAR") and of CEDEL S.A. for credit to the
respective accounts of the beneficial owners of Securities (or to such other
accounts as they may direct).
(b) The Company shall execute and deliver to the Fiscal Agent
U.S.$100,000,000 principal amount of definitive Securities prior to the
exchange date for issuing such definitive securities (the "Exchange Date"),
which shall be the date 90 days after the date on which the distribution of
the Securities has been completed, as Credit Suisse First Boston Limited shall
have advised the Fiscal Agent in writing with a copy to the Company, the
Common Depositary, EURO-CLEAR and CEDEL S.A. Such definitive Securities shall
be in the form of bearer Securities, registered Securities or any combination
thereof as may be specified by the Fiscal Agent.
(c) The interest of a beneficial owner of securities in the Global
Security shall be exchanged for definitive securities when the account holder
instructs EURO-CLEAR or CEDEL S.A., as the case may be, to request such
exchange on his behalf and delivers to EURO-CLEAR or CEDEL S.A., as the case
may be, a certificate substantially in the form set forth in Exhibit C hereto,
copies of which certificate shall be available from the offices of EURO-CLEAR
and CEDEL S.A., the Fiscal Agent and each other paying agency of the Company.
Any exchange pursuant to this Section shall be made free of charge to the
beneficial owners of the Global Security, except that a person receiving
definitive Securities must bear the cost of insurance, postage, transportation
and the like in the event that such person does not take delivery of such
definitive securities in person at the offices of EURO-CLEAR or CEDEL S.A.
Notwithstanding any other provision hereof or of the Securities, no bearer
Security will be mailed to or otherwise delivered in connection with its
original issuance to any location within the United States (as defined.in
Section 5(b) hereof).
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(d) On or after the Exchange Date, the Global Security shall be
surrendered by the Common Depositary to the Fiscal Agent at its main office in
London, as the Company's agent, for purposes of the exchange of Securities
described below. Following such surrender, upon the request of EURO-CLEAR or
CEDEL S.A., acting on behalf of beneficial owners of Securities, the Fiscal
Agent or an Authenticating Agent shall authenticate and deliver to EURO-CLEAR
or CEDEL S.A., as the case may be, for the account of such owners, definitive
Securities in the form of bearer Securities or registered Securities, or any
combination thereof, as shall be specified by such owners in exchange for the
aggregate principal amount of the Global Security beneficially owned by such
owners, but only upon delivery by EURO-CLEAR or CEDEL S.A., acting on behalf
of such owners, to the Fiscal Agent, the Authenticating Agent that will
authenticate such definitive Securities, if any, and to the Company-of a
certificate or certificates substantially in the form set forth in Exhibit D
hereto. The delivery to the Fiscal Agent and to the Company by EURO-CLEAR or
CEDEL S.A. of such a certificate or certificates may be relied upon by the
Fiscal Agent and the Company as conclusive evidence that a related certificate
or certificates has or have been delivered to EURO-CLEAR or CEDEL S.A., as the
case may be, as contemplated by the terms of Section 4(c) hereof.
Upon any exchange of a portion of the Global Security for definitive
Securities, the Global Security shall be endorsed by the Fiscal Agent to
reflect the reduction of the principal amount evidenced thereby, whereupon its
remaining principal amount shall be reduced for all purposes by the amount so
exchanged. Until so exchanged in full, the Global Security shall in all
respects be entitled to the same benefits under this Agreement as definitive
Securities authenticated and delivered hereunder, except that none of EURO-
CLEAR, CEDEL S.A. or the beneficial owners of the Global Security shall be
entitled to receive payment of interest thereon.
5. (a) The Company will pay or cause to be paid to the main office
of its paying agent in the Borough of Manhattan, The City of New York (the
"Principal Paying Agent") the amounts required to be paid by it herein and in
the Securities, at the times and for the purposes set forth herein and in the
Securities, and the Company hereby authorizes and directs the Fiscal Agent,
and the Fiscal Agent hereby directs and authorizes the Principal Paying Agent,
to make payment of the principal of and interest on the Securities in
accordance with the terms of the Securities. Funds sufficient to provide for
payment by the Company to the Principal Paying Agent, or to such other office
or agency as the Fiscal Agent shall direct, shall be deposited by the Company
with the Principal Paying Agent, or such other office or agency, at least one
business day prior to the relevant payment date specified in the Securities.
(b) Notwithstanding any other provision hereof (other than the last
sentence of this Section 5(b)) or any provision of the Securities, no payment
with respect to principal of or interest or any additional amounts payable
pursuant to Paragraph 5 of the definitive Securities ("additional amounts"),
on any bearer Security may be made at any office of the Fiscal Agent or any
paying agency maintained by the Company in the United States of America
(including the States and the District of Columbia), its territories, its
possessions or other areas subject to its jurisdiction ("United States") or by
transfer to an account in, or by mail to an address in, the United States.
Notwithstanding the foregoing, payment of principal of bearer Securities may,
at the Company's option, be made at the paying agent in the Borough of
Manhattan, The City of New York, and payment of interest on bearer Securities
and payment of any additional amounts payable on bearer Securities may be made
at the paying agent in the Borough of Manhattan, The City of New York, if (but
only if) the full amount of such payments at all paying agents located outside
the United States through which payment is to be made in accordance with the
terms of the Securities is illegal or effectively precluded by exchange
controls or other similar restrictions, as determined by the Company.
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(c) At least 10 days prior to the first Interest Payment Date (as
defined in the definitive Securities) and at least 10 days prior to each date
of payment of principal or interest thereafter if there has been any change
with respect to the matters set forth on the below-mentioned certificate, the
Company will furnish the Fiscal Agent and each paying agency of the Company
with a certificate of one of its executive officers instructing the Fiscal
Agent and each paying agency of the Company whether such payment of principal
of or interest on the Securities shall be made without deduction or
withholding for or on account of any tax, assessment or other governmental
charge described in Paragraph 5(a) of the definitive Securities. If any such
deduction or withholding shall be required, then such certificate shall
specify, by country, the percentage and the amount, if any, required to be
withheld on such payment to Holders of Securities or coupons, and the Company
will pay or cause to be paid to the Fiscal Agent any required Additional
Amounts (as defined in such Paragraph 5(a)). The company agrees to indemnify
the Fiscal Agent and each paying agency of the Company for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence on their part arising out of or in connection with
actions taken or omitted by them in reliance on any certificate furnished
pursuant to this Section.
(d) In the case of any redemption of Securities at the option of the
Company, at least 60 days (unless shorter notice is acceptable to the Fiscal
Agent) before the date designated for redemption, the Company shall give
notice to the Fiscal Agent of its election to redeem the Securities on the
redemption date specified in such notice, stating the principal amount of
Securities to be redeemed. The Fiscal Agent shall cause notice of redemption
to be given in the name of and at the expense of the Company in the manner
provided in Paragraph 6(d) of the definitive Securities.
6. All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to anyone other
than the Fiscal Agent or the Principal Paying Agent, be delivered to the
Principal Paying Agent. All registered Securities and matured coupons so
delivered shall be promptly cancelled by the Fiscal Agent or the Principal
Paying Agent, as the case may be. All bearer securities and unmatured coupons
so delivered shall be promptly cancelled by the Principal Paying Agent unless
the Fiscal Agent is instructed by the Company to hold such bearer Securities
and unmatured coupons for reissuance. If the Fiscal Agent is so instructed by
the Company, bearer Securities and unmatured coupons held for reissuance may
be reissued only in replacement of mutilated, lost, stolen or destroyed bearer
Securities or coupons pursuant to Paragraph 9 of the definitive Securities.
All Securities and unmatured coupons held by the Fiscal Agent or the Principal
Paying Agent pending such cancellation or reissuance shall be deemed delivered
for all purposes of this Agreement and the Securities. All cancelled
Securities and coupons held by the Fiscal Agent or the Principal Paying Agent
shall be destroyed, and the Fiscal Agent shall furnish to the Company a
certificate with respect to such destruction, except that the cancelled Global
Security and the certificates as to beneficial ownership required by Section 4
hereof (including any certificates in the form set forth in Exhibit D hereto)
shall not be destroyed but shall be delivered to the Company.
7. The Fiscal Agent accepts, and each other agent of the Company or
the Fiscal Agent shall be deemed to accept, its obligations set forth herein
and in the Securities upon the terms and conditions hereof and thereof,
including the following, to all of which the Company agrees and to all of
which the rights hereunder of the Holders from time to time of the securities
and coupons shall be subject:
(a) The Fiscal Agent and each other agency of the Company shall be
entitled to the compensation to be agreed upon with the Company for all
services rendered by it, and the Company agrees promptly to pay such
compensation and to reimburse the Fiscal Agent and each other agency of the
Company for its reasonable out-ofpocket expenses (including, but not limited
to, counsel fees and expenses) incurred by it in connection with the services
rendered by it hereunder. The Company also agrees to indemnify each of the
Fiscal Agent and each other agency of the Company hereunder for, and to hold
it harmless against, any loss, liability or expense incurred without
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negligence or bad faith on the part of the Fiscal Agent or such other agency,
arising out of or in connection with its acting as such Fiscal Agent or other
agency of the Company hereunder, including the reasonable costs and expenses
of defending against any claim of liability. For purposes of this Section,
the obligations of the Company shall survive the payment of the Securities and
the resignation or removal of the-Fiscal Agent or any other agency of the
Company hereunder.
(b) In acting under this Agreement and in connection with the Securities, the
Fiscal Agent and each other agency of the Company are acting solely as agents
of the Company and do not assume any obligation or relationship of agency or
trust for or with any of the Holders of the Securities or coupons, except that
all funds held by the Fiscal Agent or any paying agency of the Company for
payment of principal of or interest on the Securities shall be held in trust,
but need not be segregated from other funds except as required by law, and
shall be applied as set forth herein and in the Securities; provided, however,
that monies paid by the Company to the Fiscal Agent or any paying agency of
the Company for the payment of principal of or interest on Securities
remaining unclaimed at the end of two years after such principal or interest
shall have become due and payable shall be repaid to the Company as provided
and in the manner set forth in the Securities, whereupon the aforesaid trust
shall terminate and all liability of the Fiscal Agent or such paying agency of
the Company with respect thereto shall cease.
(c) The Fiscal Agent and each other agency of the Company hereunder may
consult with counsel (who may also be counsel to the Company) satisfactory to
such Fiscal Agent or agency, in its reasonable judgment, and the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it hereunder
in good faith and in reliance thereon.
(d) The Fiscal Agent and each other agency of the Company hereunder
shall be protected and shall incur no liability for or in respect of any
action taken, omitted or suffered by it in reliance upon any Security, coupon,
notice, direction, consent, certificate, affidavit, statement or other paper
or document reasonably believed by the Fiscal Agent or such other agency to be
genuine and to have been signed by the proper parties.
(e) The Fiscal Agent and each other agency of the Company hereunder and
its officers, directors and employees may become the owner of, or acquire an
interest in, any Securities or coupons, with the same rights that it or they
would have if it were not the Fiscal Agent or such other agency of the Company
hereunder, may engage or be interested in any financial or other transaction
with the Company and may act on, or as depositary, trustee or agent for, any
committee or body of Holders of Securities or coupons or holders of other
obligations of the Company as freely as if it were not the Fiscal Agent or an
agency of the Company hereunder.
(f) Neither the Fiscal Agent nor any other agency of the Company
hereunder shall be under any liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the
Securities except as may be otherwise agreed with the Company.
(g) The recitals contained herein and in the Securities (except the
Fiscal Agent's certificates of authentication) and in the coupons shall be
taken as the statements of the Company; the Fiscal Agent and the other agents
of the Company (including the Principal Paying Agent and the Security
Registrar) assume no responsibility for their correctness. The Fiscal Agent
and such other agents make no representation as to the validity or sufficiency
of this Agreement or the Securities or coupons, except for the Fiscal Agent's
due authorization to execute and deliver this Agreement; provided, however,
that the Fiscal Agent shall not be relieved of its duty to authenticate
Securities, acting itself or through an appointed Authenticating Agent, as
authorized by this Agreement. The Fiscal Agent shall not be accountable for
the use of any of the Securities or the use or application by the Company of
the proceeds of the sale of the Securities or for compliance by the Company
with any of the Company's covenants or agreements contained in the Securities.
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(h) The Fiscal Agent and each other agency of the Company hereunder
shall be obligated to perform such duties and only such duties as are herein
and in the Securities specifically set forth and no implied duties or
obligations shall be read into this Agreement or the securities against the
Fiscal Agent or any other agency of the Company. Neither the Fiscal Agent,
the Principal Paying Agent, the Security Registrar nor any other agent of the
Company shall be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it.
(i) Unless herein or in the Securities otherwise specifically provided,
any order, certificate, notice, request, direction or other communication from
the Company under any provision of this Agreement shall be sufficient if
signed by an executive officer of the Company.
(j) The Fiscal Agent may discharge any of its responsibilities hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Fiscal Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder.
(k) No provision of this Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct or that of its officers, directors or
employees; nor shall any such provision relieve any agent or attorney of the
Company or the Fiscal Agent from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct or that of its
officers, directors or employees.
8. (a) The Company agrees that, uhtil all securities or coupons
(other than coupons the surrender of which has been waived under Paragraphs 3
and 6 of the definitive Securities and coupons which have been replaced as
provided in Paragraph 9 of the definitive securities) authenticated and
delivered hereunder shall have (i) been delivered to the Fiscal Agent or the
Principal Paying Agent for cancellation or (ii) become due and payable,
whether at maturity or upon redemption, and monies sufficient to pay the
principal thereof and interest thereon shall have been made available to the
Fiscal Agent or the Principal Paying Agent and either paid to the persons
entitled thereto or returned to the Company as provided herein and in the
Securities, there shall at all times be a Fiscal Agent hereunder which shall
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers and having a combined
capital and surplus of at least U.S.$50,000,000.
(b) The Company hereby appoints (i) Morgan Guaranty Trust Company
of New York, at its corporate trust office in the Borough of Manhattan, The
City of New York, as its Principal Paying Agent where registered Securities
may be presented or surrendered for payment, and where bearer Securities and
coupons may be presented or surrendered for payment in the circumstances
described in Section 5(b) (and not otherwise), and as its Security Registrar
where Securities may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and coupons and this Agreement may be served, and (ii) Banque
Internationale a Luxembourg S.A. in Luxembourg, Morgan Guaranty Trust Company
of New York in London, England and in Brussels, Belgium and Swiss Bank
Corporation in Basle, Switzerland as its agents outside the United States
where, subject to any applicable laws or regulations, Securities and coupons
may be presented and surrendered for payment.
The Company may at any time and from time to time vary or terminate
the appointment of any such agent or appoint any additional agents for any or
all of such purposes; provided, however, that, so long as the Company is
required to maintain a Fiscal Agent hereunder, the Company will maintain (i)
in the Borough of Manhattan, The City of New York, an office or agency where
registered Securities may be presented or surrendered for payment, where
bearer securities and coupons may be presented or surrendered for payment in
the circumstances described in Section 5(b) (and not otherwise), where
Securities may be presented for registration of transfer or exchange and where
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notices and demands to or upon the Company in respect of the Securities and
coupons and this Agreement may be served and (ii) subject to any laws or
regulations applicable thereto, in Europe an office or agency where Securities
and coupons may be presented and surrendered for payment and where Securities
may be presented for registration of transfer or exchange; and provided,
further, that so long as the Securities are listed on the Luxembourg Stock
Exchange and such exchange shall so require, the Company will maintain a
paying agency in Luxembourg. The Company will give prompt written notice to
the Fiscal Agent of the appointment or termination of any such office or
agency and of the location and any change in the location of any such office
or agency and shall give notice thereof to Holders in the manner described in
the first sentence of Paragraph 6(d) of the definitive securities.
If at any time the Company shall fail to maintain any such required
office or agency in the Borough of Manhattan, The City of New York, or in
Europe, or shall fail to furnish the Fiscal Agent with the address thereof,
presentations and surrenders may be made (subject to the limitations described
in the preceding paragraph) at and notices and demands may be served on the
Principal Office of the Fiscal Agent, and Securities and coupons may be
presented and surrendered for payment to Morgan Guaranty Trust Company of
New York, at the main office of its Corporate Trust Department in London,
England, and the Company hereby appoints the same as its agent to receive such
presentations, surrenders, notices and demands.
(c) The Fiscal Agent, the Principal Paying Agent and the Security
Registrar may at any time resign as such Fiscal Agent, Principal Paying Agent
or Security Registrar by giving written notice to the Company of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall never be less
than three months after the receipt of such notice by the Company unless the
Company agrees to accept less notice. The Fiscal Agent may be removed at any
time, with or without cause, by the filing with it of an instrument in writing
signed on behalf of the Company and specifying such removal and the date when
it is intended to become effective. Any resignation or removal of the Fiscal
Agent or paying agency of the Company, if such paying agency is the only
paying agency of the Company then maintained in Europe, shall take effect upon
the date of the appointment by the Company as hereinafter provided of a
successor and the acceptance of such appointment by such successor. Upon its
resignation or removal, such agent shall be entitled to the payment by the
Company of its compensation for the services rendered hereunder and to the
reimbursement of all reasonable out-of-pocket expenses incurred in connection
with the services rendered hereunder by such agent.
(d) In case at any time the Fiscal Agent or paying agency of the
Company, if such paying agency is the only paying agency of the Company then
maintained in Europe, shall resign, or shall be removed, or shall become
incapable of acting or shall be adjudged a bankrupt or insolvent, or if a
receiver of it or of its property shall be appointed, or if any public officer
shall take charge or control of it or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a successor agent,
eligible as aforesaid, shall be appointed by the Company by an instrument in
writing. Upon the appointment as aforesaid of a successor agent and
acceptance by it of such appointment, the agent so superseded shall cease to
be such agent hereunder. If no-successor Fiscal Agent or paying agency of the
Company, as the case may be, shall have been so appointed by the Company and
shall have accepted appointment as hereinafter provided, and, in the case of
such paying agency, if such paying agency is the only paying agency of the
Company then maintained in Europe, then any Holder of a Security who has been
a bona fide Holder of a Security for at least six months, on behalf of himself
and all others similarly situated, or the Fiscal Agent may petition any court
of competent jurisdiction for the appointment of a successor Fiscal Agent or
paying agency, as the case may be.
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(e) Any successor Fiscal Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Fiscal
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as such Fiscal
Agent hereunderl and such predecessor, upon payment of its charges and
disbursements then unpaid, shall simultaneously therewith become obligated to
transfer, deliver and pay ovet, and such successor Fiscal Agent shall be
entitled to receive, all monies, securities or other property on deposit with
or held by such predecessor, as such Fiscal Agent hereunder. The Company will
give prompt written notice to each paying agency of the Company of the
appointment of a successor Fiscal Agent and shall give notice thereof to
Holders, at least once, in the manner described in Paragraph 6(d) of the
definitive Securities.
(f) Any corporation, bank or trust company into which the Fiscal
Agent may be merged or converted, or with which it may be consolidated, or any
corporation, bank or trust company resulting from any merger, conversion or
consolidation to which the Fiscal Agent shall be a party, or any corporation,
bank or trust company succeeding to all or substantially all the assets and
business of the Fiscal Agent, shall be the successor to the Fiscal Agent under
this Agreement, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any document or any further
act on the part of any of the parties hereto.
9. The Company will pay all stamp taxes and other duties, if any,
which may be imposed by the United States, the United Kingdom or any political
subdivision or taxing authority of or in the foregoing, with respect to the
execution or delivery of this Agreement, the issuance of the Global Security,
the initial issuance of the definitive Securities or the exchange from time to
time of the Global Security for definitive Securities.
10. (a) A meeting of Holders of Securities may be called at any
time and from time to time to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement or the Securities to be made, given or taken by Holders of
Securities.
(b) The Company or the Fiscal Agent may at any time call a meeting
of Holders of Securities for any purpose specified in Section 10(a) to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Fiscal Agent shall determine. Notice of every
meeting of Holders of Securities, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting
shall be given, in the same manner as provided in Paragraph 6(d) of the
definitive Securities, not more than 180 days nor less than 21 days prior to
the date fixed for the meeting. In case at any time the Company or the
Holders of at least 10% in principal amount of the Outstanding (as defined in
Paragraph 3 of the definitive Securities) Securities shall have requested the
Fiscal Agent to call a meeting of the Holders of Securities for any purpose
specified in Section 10(a), by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Fiscal Agent
shall not have published the first notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Company or the Holders of Securities
in the amount above-specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or in London for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in this subsection (b).
(c) To be entitled to vote at any meeting of Holders of Securities,
a person shall be a Holder of outstanding Securities or a person appointed by
an instrument in writing as proxy for such a Holder.
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(d) The persons entitled to vote a majority in principal amount of
the Outstanding Securities shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of the Holders of Securities, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 10(b), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage of the principal
amount of the Outstanding Securities which shall constitute a quorum.
At the reconvening of any meeting adjourned for a lack of a quorum
in accordance with the provisions of the prior paragraph the persons entitled
to vote 25% in principal amount of the Outstanding Securities shall constitute
a quorum for the taking of any action set forth in the notice of the original
meeting. Any meeting of Holders of Securities at which a quorum is present
may be adjourned from time to time by vote of a majority in principal amount
of the Outstanding Securities represented at the meeting, and the meeting may
be held as so adjourned without further notice. At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any
resolution and all matters shall be effectively passed or decided if passed or
decided by the persons entitled to vote 66 2/3% in principal amount of the
Outstanding Securities represented and voting.
(e) The Fiscal Agent may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities in regard to proof of
the holding of Securities and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. The Fiscal Agent shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or Holders of Securities as provided above, in which case the
Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the persons entitled to
vote a majority in principal amount of the Outstanding Securities represented
and voting at the meeting. The chairman of the meeting shall have no right to
vote, except as a Holder of Securities or a proxy. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities shall
be prepared, and one such copy shall be delivered to the Company and another
to the Fiscal Agent to be preserved by the Fiscal Agent.
11. All notices hereunder shall be deemed to have been given when
deposited in the mails as first-class mail, registered or certified mail,
return receipt requested, postage prepaid, or, if electronically communicated,
then when delivered, or when hand delivered, addressed to either party hereto
as follows:
Address
The Company............. Lincoln National Corporation
1300 South Clinton Street
P.O. Box 1110
Fort Wayne, Indiana 46801
Attention: Treasurer
Fiscal Agent............ Morgan Guaranty Trust Company of New York
30 West Broadway
New York, New York 10015
Attention: Corporate Trust Department
or at any other address of which either of the foregoing shall have notified
the other in writing.
-81-
12. This Agreement and each of the Securities and coupons shall be
governed by and construed in accordance with the laws of the State of New
York.
13. This Agreement may be amended by the Company and the Fiscal
Agent, without the consent of the Holder of any security or coupon, for the
purpose of (a) adding to the covenants of the Company for the benefit of the
Holders of Securities or coupons, or (b) surrendering any right or power
conferred upon the Company, or (c) securing the Securities pursuant to the
requirements of the Securities or otherwise, or (d) permitting registered
Securities to be exchanged for bearer Securities or relaxing or eliminating
the restrictions on payment of principal, if any, and interest in respect of
bearer Securities in the United States to the extent then permitted under
applicable regulations of the United States Treasury Department, and provided
no adverse consequences would result to the Holders of the Securities, or (e)
evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants and obligations of the
Company herein and in the Securities and coupons as permitted by the
Securities, or (f) curing any ambiguity or correcting or supplementing any
defective provision contained herein or in the Securities or coupons. This
Agreement may also be amended by the Company and the Fiscal Agent with the
consent of the Holders of the Securities as provided in Paragraph 10 of the
definitive Securities. The Fiscal Agent shall not enter into any amendment to
this Agreement unless there shall have been delivered to the Fiscal Agent a
certificate signed by an executive officer of the Company and a written
opinion of counsel satisfactory to the Fiscal Agent (who may be counsel to the
Company), each stating that such amendment is authorized or permitted by this
Agreement or the Securities.
14. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
LINCOLN NATIONAL CORPORATION
[CORPORATE SEAL] By
Attest:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
[CORPORATE SEAL] By
Vice President
Attest:
Assistant Secretary
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EXHIBIT A
(FORM OF GLOBAL SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS SECURITY NOR ANY PORTION HEREOF MAY BE
OFFERED OR SOLD DIRECTLY OR INDIRECTLY IN THE UNITED STATES OF AMERICA
(INCLUDING THE STATES AND THE DISTRICT OF COLUMBIA), ITS TERRITORIES,
ITS POSSESSIONS OR OTHER AREAS SUBJECT TO ITS JURISDICTION ("UNITED
STATES") OR TO OR FOR THE ACCOUNT OF CITIZENS OR RESIDENTS THEREOF,
ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN
OR UNDER THE LAWS OF THE UNITED STATES OR ANY ESTATE OR TRUST THE INCOME
OF WHICH IS SUBJECT TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF
ITS SOURCE ("UNITED STATES PERSONS").
LINCOLN NATIONAL CORPORATION
9 3/4% Notes Due 1995
TEMPORARY GLOBAL SECURITY
LINCOLN NATIONAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Indiana ("Company"), for value
received, hereby promises to pay to bearer upon presentation and surrender of
this Global Security the principal sum of One Hundred Million United States
Dollars (U.S.$100,000,000) on October 20, 1995 and to pay interest thereon,
from the date hereof, annually in arrears on October 20 in each year,
commencing October 20, 1989, at the rate of 9 3/4% per annum, until the
principal hereof is paid or made available for payment; provided, however,
that interest on this Global security shall be payable only after the issuance
of the definitive Securities for which this Global Security is exchangeable
and, in the case of definitive Securities in bearer form, only upon
presentation and surrender (at an office or agency outside the United States,
except as otherwise provided in the Fiscal Agency Agreement referred to below)
of the interest coupons thereto attached as they severally mature.
This Global Security is one of a duly authorized issue of Securities
of the Company designated as specified in the title hereof, entitled to the
benefits of and to be entitled to the benefits of the Fiscal Agency Agreement,
dated as of October 20, 1988 ("Fiscal Agency Agreement), between the Company
and Morgan Guaranty Trust Company of New York, as Fiscal Agent ("Fiscal
Agent"). It is a temporary security and is exchangeable in whole or from time
to time in part without charge upon request of the Holder hereof for
definitive Securities in bearer form, with interest coupons attached, or in
registered form, without coupons, of authorized denominations, (a) not earlier
than 90 days after the date on which the distribution of the Securities has
been completed as Credit Suisse First Boston Limited shall have advised the
Company and the Fiscal Agent in writing and (b) as promptly as practicable
following presentation of certification, in the form required by the Fiscal
Agency Agreement for such purpose, that the beneficial owner or owners of
this Global Security (or, if such exchange is only for a part of this Global
Security, of such part) are not United States Persons. Definitive Securities
in bearer form to be delivered in exchange for any part of this Global
Security shall be delivered only outside the United States. Upon any exchange
of a part of this Global Security for definitive Securities, the portion of
the principal amount hereof so exchanged shall be endorsed by the Fiscal Agent
on the Schedule hereto, and the principal amount hereof shall be reduced for
all purposes by the amount so exchanged.
Until exchanged in full for definitive Securities, this Global
Security shall in all respects be entitled to the same benefits and subject to
the same terms and conditions of, and the Company shall be subject to the same
restrictions as those to be endorsed on, the definitive Securities and those
contained in the Fiscal Agency Agreement, except that neither the Holder
hereof nor the beneficial owners of this Global Security shall be entitled to
receive payment of interest hereon.
-83-
This Global Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Global Security which are defined in the
Fiscal Agency Agreement or the definitive Securities shall have the meanings
assigned to them therein.
Unless the certificate of authentication hereon has been executed by
the Fiscal Agent or by the manual signature of one of the duly authorized
officers of the Fiscal Agent, this Global Security shall not be valid or
obligatory for any purpose.
IN WITNESS WHEREAS, the Company has caused this Global Security to
be duly executed and its corporate seal to be hereunto affixed and attested.
Dated as of October 20, 1988.
LINCOLN NATIONAL CORPORATION
[CORPORATE SEAL] By
Attest:
(FORM OF FISCAL AGENT'S CERTIFICATE
OF AUTHENTICATION)
This is the Global Security referred to in the within-mentioned
Fiscal Agency Agreement.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Fiscal Agent
By
Authorized Officer
SCHEDULE OF EXCHANGES
Remaining
principal
amount
Principal Amount following Notation made
Date exchanged for such on behalf of the
made definitive Securities exchange Fiscal Agent
-84-
EXHIBIT B
(FORMS OF DEFINITIVE SECURITIES)
[Form of Face]
[If Bearer Security:
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
LINCOLN NATIONAL CORPORATION
9 3/4 % Notes Due 1995
No. B- U.S.$5,000
LINCOLN NATIONAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Indiana ("Company"), for value
received, hereby promises to pay to bearer upon presentation and surrender of
this Security the principal sum of Five Thousand United States Dollars on
October 20, 1995 and to pay interest thereon, from the date hereof, annually
in arrears on October 20 in each year ("Interest Payment Date"), commencing
October 20, 1989, at the rate of 9 3/4% per annum (calculated on the basis of
a year of twelve 30-day months), until the principal hereof is paid or made
available for payment, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts. Such payments shall be made subject to any laws or
regulations applicable thereto and to the right of the Company (limited as
provided below) to terminate the appointment of any such paying agency, at the
main offices of Morgan Guaranty Trust Company of New York in London, England,
and in Brussels, Belgium, Swiss Bank Corporation in Basle, Switzerland and
Banque Internationale a Luxembourg S.A. in Luxembourg, or at such other
offices or agencies in Europe as the Company may designate and notify the
Holder (as defined in Paragraph 2 hereof) as provided in Paragraph 6(d)
hereof, by United States dollar check drawn on a bank in The City of New York
or, at the option of the Holder, by transfer to a United States dollar account
maintained by the payee with a bank located in Europe. Interest on this
Security due on or before maturity shall be payable only upon presentation and
surrender at such an office or agency of the coupons attached hereto as they
severally mature. No payment of principal or interest with respect to this
Security shall be made at any office or agency of the Company in the United
States (as defined in Paragraph 5 hereof) or by transfer to an account in, or
by mail to an address in, the United States. Notwithstanding the foregoing,
payment of principal of bearer Securities may, at the Company's option, be
made at the paying agent in the Borough of Manhattan, The City of New York,
and payment of interest on bearer Securities and payment of any additional
amounts payable on bearer Securities may be made at the paying agent in the
Borough of Manhattan, The City of New York, if (but only if) the full amount
of such payments at all offices and agencies located outside the United States
through which payment is to be made in accordance with the terms of the
Securities is illegal or effectively precluded by exchange controls or other
similar restrictions, as determined by the Company. The Company covenants
that until this Security has been delivered to the Fiscal Agent for
cancellation, or monies sufficient to pay the principal of and interest on
this Security have been made available for payment and either paid or returned
to the Company as provided herein, it will at all times maintain offices or
agencies in the Borough of Manhattan, The City of New York, and in Europe
(which, so long as the Securities are listed on the Luxembourg Stock Exchange
and such exchange shall so require, shall include an office or agency in
Luxembourg) for the payment of the principal of and interest on the Securities
as herein provided.
-85-
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as though fully set forth at this place.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Fiscal Agency Agreement referred to on the reverse of this
Security.
Unless the certificate of authentication hereon has been executed by
the Fiscal Agent or by an Authenticating Agent, by the manual signature of one
of the authorized officers of the Fiscal Agent or such Authenticating Agent,
as the case may be, neither this Security nor any coupon appertaining hereto
shall be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed and its corporate seal to be hereunto affixed and attested and duly
executed coupons to be annexed hereto.
Dated as of October 20, 1988
LINCOLN NATIONAL CORPORATION
(CORPORATE SEAL]
Attest: By
(If Registered Security:
LINCOLN NATIONAL CORPORATION
9 3/4% Notes Due 1995
No. R- U.S.$
LINCOLN NATIONAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Indiana ("Company"), for value
received, hereby promises to, or registered assigns, the
principal sum of United States Dollars on October 20, 1995 and
to pay interest thereon from October 20, 1988 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, annually in
arrears on October 20 in each year ("Interest Payment Date"), commencing
October 20, 1989, at the rate of 9 3/4% per annum (calculated on the basis of
a year of twelve 30-day months), until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will be paid to the person in whose
name this Security is registered at the close of business on the October 5
next preceding such Interest Payment Date ("Record Date"). Any such interest
not so punctually paid or duly p,rovided for will forthwith cease to be
payable to the person in whose name this Security is registered on such Record
Date and may be paid to the person in whose name this Security is registered
at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Security may be listed. Payments of principal shall be
made at the option of the Holder (as defined in Paragraph 2 hereof) (a) at the
main office of Morgan Guaranty Trust Company of New York in the Borough of
Manhattan, The City of New York, or at such other office or agency of the
Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts or (b) subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided below) to
terminate the appointment of any such paying agency, at the main offices of
Morgan Guaranty Trust Company of New York in London, England and in Brussels,
Belgium; Swiss Bank Corporation in Basle, Switzerland;and Banque
-86-
Internationale a Luxembourg S.A. in Luxembourg, or at such other
agencies as the Company may designate and notify the Holders as provided in
Paragraph 6(d) hereof, by United States dollar check drawn on, or transfer to
a United States dollar account maintained by the payee with, a bank in The
City of New York. Payment of interest on this Security will be made by United
States dollar check drawn on a bank in The City of New York mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register (as defined in Paragraph 3 hereof) or, upon application by
the Holder to the Fiscal Agent not later than the Record Date in the year the
payment is to be received, by transfer to a dollar account maintained by the
Holder with a bank in the Borough of Manhattan, The City of New York. The
Company covenants that until this security has been delivered to the Fiscal
Agent for cancellation, or monies sufficient to pay the principal of and
interest on this Security have been made available for payment and either paid
or returned to the Company as provided herein, it will at all times maintain
offices or agencies in the Borough of Manhattan, The City of New York, and in
Europe (which, so long as the Securities are listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, shall include an office or
agency in Luxembourg) for the payment of the principal of and interest on the
Securities as herein provided.
Reference is made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as though fully set forth at this place. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Fiscal Agency Agreement referred to on the reverse of this Security.
Unless the certificate of authentication hereon has been executed by
the Fiscal Agent or an Authenticating Agent by the manual signature of one of
the authorized officers of the Fiscal Agent or such Authenticating Agent, as
the case may be, this Security shall not be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed and its corporate seal to be hereunto affixed and attested.
Dated: 19_
LINCOLN NATIONAL CORPORATION
[CORPORATE SEAL]
By
Attest:
(FORM OF FISCAL AGENT'S OR
AUTHENTICATING AGENT'S CERTIFICATE OF AUTHENTICATION)
This is one of the Securities referred to in the within-mentioned Fiscal
Agency Agreement.
(Morgan Guaranty Trust Company of New York,
As Fiscal Agent)
[As Authenticating Agent]
By
Authorized Officer
-87-
[Form of Reverse]
1. This Security is one of a duly authorized issue of Securities of
the Company in the aggregate principal amount of One Hundred Million United
States Dollars (U.S.$100,000,000), designated as its "9 3/4% Notes Due 1995"
("Securities"). The Company, for the benefit of the Holders from time to time
of the Securities, has entered into a Fiscal Agency Agreement, dated as of
October 20, 1988 ("Fiscal Agency Agreement"), between the Company and Morgan
Guaranty Trust Company of New York, as Fiscal Agent, copies of which Fiscal
Agency Agreement are on file and available for inspection at the Principal
Office of the Fiscal Agent in the City of New York and the main office of the
paying agencies named on the face of this Security. (Morgan Guaranty Trust
Company of New York and its respective successors as Fiscal Agent are herein
called "Fiscal Agent".)
The Securities are unsecured and rank equally with all unsecured and
unsubordinated indebtedness for borrowed money of the Company.
2. The Securities are issuable as bearer Securities, with interest
coupons attached ("coupons"), in the denomination of U.S.$5,000 and as
registered Securities, without coupons, in the denominations of U.S.$5,000 and
integral multiples thereof. As used herein, the term "Holder", when used
with respect to a registered Security, means the person in whose name such
Security is registered in the Security Register and, when used with respect to
a bearer Security or any coupon, means the bearer thereof.
3. The Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange. The Company has appointed Morgan
Guaranty Trust Company of New York, having its Corporate Trust Office at 30
West Broadway, New York, New York 10015 as its agent in the Borough of
Manhattan, The City of New York, for such purpose ("Security Registrar") and
has agreed to cause to be kept at such office a register (the register
maintained in such office and in any other office or agency for such purpose
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
will provide for the registration of registered Securities and of transfers of
registered Securities. In addition, the Company has appointed the main
offices of Morgan Guaranty Trust Company of New York in London, England and
Banque Internationale a Luxembourg S.A. in Luxembourg as additional agencies
where Securities may be surrendered for registration of transfer or exchange.
The Company reserves the right to vary or terminate the appointment of Morgan
Guaranty Trust Company of New York as Security Registrar or of any transfer
agent or to appoint additional or other registrars or transfer agents or to
approve any change in the office through which any security registrar or any
transfer agent acts, provided that there will at all times be a security
registrar in the Borough of Manhattan, The City of New York, and a transfer
agent in a European city.
[If Bearer Security - At the option of the Holder upon request
confirmed in writing, bearer Securities may be exchanged for registered
Securities, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the bearer Securities to be exchanged at the office
of the Security Registrar or any transfer agent, with all unmatured coupons
and all matured coupons in default thereto appertaining. If the Holder is
unable to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, such exchange may be effected if the bearer securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Fiscal Agent if
there be furnished to them such security or indemnity as they may require to
save each of them and each other agency of the Company hereunder harmless.
Notwithstanding the foregoing, if a bearer Security is surrendered in exchange
for a registered Security (i) after the close of business on a Record Date and
before the opening of business on the relevant Interest Payment Date, or (ii)
after the close of business on any special record date for the payment of
defaulted interest and before the opening of business on the relevant proposed
-88-
date of payment of such defaulted interest, such bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or pro-
posed date of payment, as the case may be, and the interest payable on such
Interest Payment bate or proposed date of payment shall not be payable in
respect of the registered Security issued in exchange for such bearer
Security, but will be payable only to the Holder of such coupon upon
presentation and surrender thereof when due. Registered Securities may not be
surrendered in exchange for bearer Securities. The Company shall not be
required to make any exchange of Securities if as a result thereof the Company
would incur adverse tax consequences under United States Federal income tax
laws.]
[If Registered Security - The transfer of a registered Security is
registrable on the Security Register upon surrender of such Security at the
office of the Security Registrar or any transfer agent duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company duly executed by, the Holder thereof or his attorney duly authorized
in writing. Upon such surrender of this Security for registration of
transfer, the Company shall execute, and the Fiscal Agent or an Authenticating
Agent shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new registered Securities, dated the date of
authentication thereof, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder upon request confirmed in writing,
registered Securities may be exchanged for registered Securities of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at the office of the Security
Registrar or any transfer agent. Registered Securities may not be surrendered
in exchange for bearer Securities. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Fiscal Agent or an Authenti-
cating Agent shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive. Any registration of transfer or
exchange will be effected upon the transfer agent or the Security Registrar,
as the case may be, being satisfied with the documents of transfer and
identity of the person making the request and subject to such reasonable
regulations as the Company may from time to time agree with the transfer
agents, the Security Registrar and the Fiscal Agent. The Company shall not be
required to make any exchange of Securities if as a result thereof the Company
would incur adverse tax consequences under United States Federal income tax
laws.]
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits, as the Securities surrendered
upon such registration of transfer or exchange. No service charge shall be
made for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
[If bearer Security - Title to bearer Securities and coupons shall
pass by delivery.] The Company, the Fiscal Agent, the Security Registrar and
any transfer or paying agent of the Company may deem and treat the person
in whose name a registered Security is registered, the bearer of a bearer
Security and the bearer of a coupon as the owner thereof for all purposes,
whether or not such Security or coupon be overdue, and neither the Company,
the Fiscal Agent, the Security Registrar nor any such agent shall be affected
by notice to the contrary.
For purposes of the provisions of this Security and the Fiscal
Agency Agreement, any Security authenticated and delivered pursuant to the
Fiscal Agency Agreement shall, as of any date of determination, be deemed to
be "Outstanding", except:
(i) Securities theretofore cancelled by the Fiscal Agent or the paying
agent of the Company in the Borough of Manhattan, The City of New York, or
delivered to the Fiscal Agent or such paying agent for cancellation or held by
the Fiscal Agent or such paying agent for reissuance and not reissued;
-89-
(ii) Securities which have been called for redemption in accordance with
Paragraph 6 hereof or which have become due and payable at maturity or
otherwise and with respect to which monies sufficient to pay the principal
thereof and interest thereon shall have been made available to the Fiscal
Agent; or
(iii) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the Fiscal Agency
Agreement; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities are present at a meeting
of Holders of Securities for quorum purposes or have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or beneficially owned by any subsidiary or any
entity controlled by or under common control with the Company shall be
disregarded and deemed not to be Outstanding.
4. (a) The Company shall pay to the Fiscal Agent at its Principal
office in New York, New York (or, if so instructed by the Fiscal Agent, to the
paying agent of the Company in the Borough of Manhattan, The City of New
York), at least one business day prior to each Interest Payment Date, any
redemption date and the maturity date of the Securities, in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts, amounts sufficient (with
any amounts then held by the Fiscal Agent or other agent and available for the
purpose) to pay the interest on, the redemption price of and accrued interest
(if the redemption date is not an Interest Payment Date) on, and the principal
of, the Securities due and payable on such Interest Payment Date, redemption
date or maturity date, as the case may be. The Fiscal Agent shall apply the
amounts so paid to it to the payment of such interest, redemption price and
principal in accordance with the terms of the Securities. Any monies paid by
the Company to the Fiscal Agent for the payment of the principal of or
interest on any securities and remaining unclaimed at the end of two years
after such principal or interest shall have become due and payable (whether at
maturity, upon call for redemption or otherwise) shall then be repaid to the
Company upon its written request, and upon such repayment all liability of the
Fiscal Agent with respect thereto shall thereupon cease, without, however,
limiting in any way any obligation the Company may have to pay the principal
of and interest on this Security as the same shall become due.
(b) In any case where the date for the payment of the principal of
or interest on any Security or the date fixed for redemption of any Security
shall be at any place of payment a day on which banking institutions are
authorized or obligated by law to close, then payment of principal or interest
need not be made on such date at such place but may be made on the next
succeeding day at such place of payment which is not a day on which banking
institutions are authorized or obligated by law to close, with the same force
and effect as if made on the date for the payment of the principal or interest
or the date fixed for redemption, and no interest shall accrue for the period
after such date.
5. (a) The Company will pay to the Holder of this Security (If
bearer Security - or any coupon appertaining hereto) who is a United States
Alien (as defined below) such amounts ("Additional Amounts") as may be
necessary in order that every net payment of the principal of and interest on
this Security, after deduction or withholding by the Company or any of its
paying agents for or on account of any present or future tax, assessment or
other governmental charge imposed upon such Holder with respect to or as a
result of such payment by the United States (If registered Security - (as
defined below)] or any political subdivision or taxing authority thereof or
therein, will not be less than the amount provided for in this Security if
bearer security - or in such coupon] to be then due and payable; provided,
however, that the foregoing obligation to pay Additional Amounts shall not
apply to any one or more of the following:
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(i) any tax, assessment or other governmental charge which would not
have been so imposed but for (A) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor, beneficiary
of, or a person holding a power over such holder, if such holder is an estate
or a trust, or between a member or shareholder of such Holder if such Holder
is a partnership or a corporation) and the United States or any political
subdivision thereof, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, person holding a power, member or share-
holder) being or having been a citizen or resident or treated as a resident
thereof, or being or having been engaged in a trade or business therein or
being or having been present therein or having or having had a permanent
establishment therein, or (B) such Holder's present or former status as a
domestic or foreign personal holding companyl or a controlled foreign
corporation, a private foundation or other tax exempt organization for United
States federal income tax purposes or a corporation which accumulates earnings
to avoid United States federal income tax;
(ii) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this Security
(If bearer Security or any coupon appertaining hereto) for payment on a date
more than 15 days after the date on which such payment became due and payable
or the date on which payment thereof is duly provided for, whichever occurs
later;
(iii) any estate, inheritance, gift, sales, transfer, excise or personal
property tax or any similar tax, assessment or other governmental charge;
(iv) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with any certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connection with the United States of the
Holder or beneficial owner of this Security (If bearer Security - or any
coupon appertaining hereto], if such compliance is required by statute or by
regulation of the United States or any political subdivision or taxing
authority thereof as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
(v) any tax, assessment or other governmental charge which is (A) payable
otherwise than by deduction or withholding from payments of principal of or
interest on this Security (If bearer Security - or any coupon appertaining
hereto), or (B) required to be withheld by any paying agent from any such
payment, if such payment can be made without such withholding by any other
paying agent in a European city; or
(vi) any tax, assessment or other governmental charge imposed on interest
received by a person holding, actually or constructively, ten percent or more
of the total combined voting power of all classes of stock of the Company
entitled to vote; nor will Additional Amounts be paid with respect to payment
of the principal of or interest on this Security (If bearer Security - or any
coupon appertaining hereto] to any United States Alien which is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent that a beneficiary or settlor with respect to such fiduciary or a
member of such a partnership or a beneficial owner would not have been
entitled to the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the Holder of this Security (If bearer Security - or any
coupon appertaining hereto.]
The term "United States Alien" means any person who, for United
States federal income tax purposes, is a foreign corporation, a nonresident
alien individual, a nonresident alien fiduciary of a foreign estate or trust,
or a foreign partnership one or more of the members of which is, for United
States federal income tax purposes, a foreign corporation, a nonresident alien
individual or a nonresident alien fiduciary of a foreign estate or trust, and
the term "United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
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(b) Notwithstanding the foregoing, if and so long as a
certification, information or other reporting requirement referred to in
Paragraph 6(c) hereof would be fully satisfied by payment of a backup
withholding tax or similar charge, the Company may elect, by so stating in the
Determination Notice (as defined in Paragraph 6(c) hereof), to have the
provisions of this Paragraph apply in lieu of the provisions of such
Paragraph. In such event, the Company will pay as Additional Amounts such
amounts as may be necessary so that every net payment made following the
effective date of such requirements outside the United States by the Company
or any of its paying agents of principal or interest due in respect of any
bearer Security or any coupon appertaining thereto of which the beneficial
owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to
the Company, any paying agent or any governmental authority), after deduction
or withholding for or on account of such backup withholding tax or similar
charge (other than a backup withholding tax or similar charge which is (i) the
result of a certification, information or other reporting requirement
described in the first parenthetical clause of such paragraph, or (ii) imposed
as a result of the fact that the Company or any of its paying agents has
actual knowledge that the beneficial owner of such bearer Security or coupon
is within the category of persons described in clause (a)(i) of this Paragraph
5, or (iii) imposed as a result of presentation of such bearer Security or
coupon for payment more than 15 days after the date on which such payment
becomes due and payable or on which payment thereof is duly provided for,
whichever occurs later), will not be less than the amount provided for in such
bearer Security or coupon to be then due and payable.
(c) Except as specifically provided in this Security and in the
Fiscal Agency Agreement, the Company shall not be required to make any payment
with respect to any tax, assessment or other governmental charge imposed by
any government or any political subdivision or taxing authority thereof or
therein. Whenever in this Security there is a reference, in any context, to
the payment of the principal of or interest on, or in respect of, any Security
or any coupon, such mention shall be deemed to include mention of the payment
of Additional Amounts provided for in this Paragraph 5 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Paragraph 5 and express mention of
the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
6. (a) The Securities are not redeemable prior to maturity except
as provided below in this Paragraph 6.
(b) The Securities may be redeemed at the option of the Company in
whole, but not in part, at any time on giving not less than 30 nor more than
60 days' notice in the manner provided in clause (d) of this Paragraph 6
(which notice shall be irrevocable), at a redemption price equal to 100% of
their principal amount, together with interest accrued to the date fixed for
redemption, if the Company has or will become obligated to pay Additional
Amounts (as provided in Paragraph 5(a) hereof) on the next succeeding interest
Payment Date, as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or any amendment
to or change in an official interpretation or application of such laws,
regulations or rulings which amendment or change becomes effective, or action
is taken, on or after September 29, 1988, and such obligation cannot be
avoided by the Company taking measures which in its judgment are reasonable;
provided however, that (i) no such notice of redemption shall be given earlier
Than 90 days prior to the earliest date on which the Company would be obliged
to pay such Additional Amounts were a payment in respect of the Notes then due
and (ii) at the time such notice of redemption is given, such obligation to
pay such Additional Amounts remains in effect. The Company's right to redeem
the Securities pursuant to the preceeding sentence shall continue for so long
as the conditions giving rise thereto shall exist. Prior to the publication
of notice of redemption of the Securities pursuant to this Paragraph 6(b), the
Company will deliver to the Fiscal Agent (i) a certificate of the Company
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stating that the Company is entitled to effect such redemption and setting
forth in reasonable detail a statement of facts showing that the conditions
precedent to the right of the Company so to redeem the Securities pursuant to
this Paragraph 6(b) have occurred and (ii) and an opinion of independent
counsel to the effect that the Company has or will become obligated to pay
such Additional Amounts as a result of such change or amendment.
(c) In addition, if the Company determines that any payment made
outside the United States by the Company or any of its paying agents of
principal or interest due in respect to any bearer Security or coupon would,
under any present or future laws or regulations of the United States, be
subject to any certification, information or other reporting requirement of
any kind, the effect of which requirement is the disclosure to the company,
any paying agent or any governmental authority of the nationality, residence
or identity of a beneficial owner of such bearer Security or coupon who is a
United States Alien (other than such a requirement (i) which would not be
applicable to a payment made by the Company or any one of its paying agents
(A) directly to the beneficial owner or (B) to any custodian, nominee or other
agent of the beneficial owner, or (ii) which can be satisfied by such
custodian, nominee or other agent certifying to the effect that such
beneficial owner is a United States Alien, provided that in each case referred
to in clauses (i)(B) and (ii) payment by such custodian nominee or other agent
of such beneficial owner is not otherwise subject to any such requirement),
the Company at its election will either (x) redeem the Securities in whole on
giving not less than 30 nor more than 60 days' notice in the manner provided
in clause (d) of this Paragraph 6, at a redemption price equal to 100% of
their principal amount, together with interest accrued to the date fixed for
redemption, or (y) if and so long as the conditions set forth in Paragraph
5(b) are satisfied, pay the Additional Amounts specified in such Paragraph.
The Company will make such determination and such election and notify the
Fiscal Agent thereof as soon as practicable, and the Fiscal Agent will
promptly give notice of such determination in the manner provided in clause
(d) of this Paragraph 6 (the "Determination Notice"), in each case stating the
effective date of such certification, information or reporting requirement,
whether the Company has elected to redeem the Securities or to pay the
Additional Amounts specified in such Paragraph and (if applicable) the last
date by which the redemption of the Securities must take place. If the
Company elects to redeem the Securities, such redemption will take place on
such date, not later than one year after publication of the Determination
Notice, as the Company elects by notice to the Fiscal Agent at least 60 days
before the redemption date, unless shorter notice is acceptable to the Fiscal
Agent. Notwithstanding the foregoing, the Company will not so redeem the
Securities if the Company subsequently determines, not less than 30 days prior
to the date fixed for redemption, that subsequent payments would not be
subject to any such requirement, in which case the Company will notify the
Fiscal Agent, which will promptly give notice of that determination in the
manner provided in clause (d) of this Paragraph 6, and any earlier redemption
notice will thereupon be revoked and of no further effect.
If the Company elects as provided in clause (y) above to pay Additional
Amounts, and as long as the Company is obligated to pay such Additional
Amounts, the Company may subsequently redeem the Securities, at any time, as a
whole but not in part, upon not more than 60 days' nor less than 30 days'
prior notice given in the manner provided in clause (d) of this Paragraph 6,
at 100% of their principal amount, together with interest accrued to the date
fixed for redemption, but without reduction for United States withholding
taxes discussed in this Paragraph. However, if the Company has made the
election to pay Additional Amounts with respect to interest and subsequently,
as a result of developments subsequent to such initial determination, makes
such a determination with respect to certification, information or other
reporting requirements applicable to principal, the Company may elect to
redeem the Securities in the manner and on the terms described in this
Paragraph 6(c), provided, in such case the Company shall have no obligation to
pay Additional Amounts with respect to principal, but will be obligated to pay
Additional Amounts with respect to interest accrued to the date of such
redemption for which an election has been made.
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(d) Notices to redeem Securities shall be given to Holders of
bearer Securities by publication at least once in a leading daily newspaper in
the English language of general circulation in The City of New York and in
London and, so long as the Securities are listed on the Luxembourg Stock
Exchange and such Exchange shall so require, in a daily newspaper of general
circulation in Luxembourg or, if publication in either London or Luxembourg is
not practicable, in Europe, and to Holders of registered Securities in writing
mailed, first-class postage prepaid, to each Holder of registered Securities
so to be redeemed, at his address as it appears in the Security Register.
Such notice will be given once not more than 60 days nor less than 30 days
prior to the date fixed for redemption. The term "daily newspaper" as used
herein shall be deemed to mean a newspaper customarily published on each
business day, whether or not it shall be published in Saturday, Sunday or
holiday editions. If by reason of the suspension of publication of any
newspaper or of regular mail service, or by reason of any other cause, it
shall be impracticable to give notice to the Holders of Securities in the
manner prescribed herein, then such notification in lieu thereof as shall be
made by the Company or by the Fiscal Agent on behalf of and at the instruction
of the Company shall constitute sufficient provision of such notice, if such
notification shall, sb far as may be practicable, approximate the terms and
conditions of the publication or mailed notice in lieu of which it is given.
Neither the failure to give notice nor any defect in Any notice given to any
particular Holder of a Security shall affect the sufficiency of any notice
with respect to other Securities. Such notices will be deemed to have been
given on the date of such publication or mailing or, if published in such
newspapers on different dates, on the date of the first such publication.
Notices to redeem Securities shall specify the date fixed for redemption, the
applicable redemption price, the place or places of payment, that payment will
be made upon presentation and surrender of the Securities to be redeemed,
together, in the case of a bearer Security, with all appurtenant coupons, if
any, maturing subsequent to the date fixed for redemption, that interest
accrued to the date fixed for redemption (unless the redemption date is an
Interest Payment Date) will be paid as specified in said notice, and that on
and after said date interest thereon will cease to accrue. Such notice shall
also state that the conditions precedent to such redemption have occurred and
state that the Company has elected to redeem all the Securities.
(e) If notice of redemption has been given in the manner set forth
in Paragraph 6(d) hereof, the Securities so to be redeemed shall become due
and payable on the redemption date specified in such notice, and upon pre-
sentation and surrender of the Securities at the place or places specified in
such notice, together in the case of bearer Securities with all appurtenant
coupons, if any, maturing subsequent to the redemption date, the Securities
shall be paid and redeemed by the Company at the places and in the manner and
currency herein specified and at the redemption price together with accrued
interest (unless the redemption date is an Interest Payment Date) to the
redemption date; provided, however, that interest due on or prior to the
redemption date on bearer Securities shall be payable only upon the
presentation and surrender of coupons for such interest (at an office or
agency outside the United States except as otherwise-provided on the face of
the bearer Securities). If any bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the
redemption date, such Security will be paid after deducting from the amount
otherwise payable an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Fiscal Agent if they are furnished with such security or
indemnity as they may require to save each of them and each paying agency of
the Company harmless. From and after the redemption date, if monies for the
redemption of Securities to be redeemed shall have been made available at the
Principal office of the Fiscal Agent for redemption on the redemption date,
the Securities to be redeemed shall cease to bear interest, the coupons for
interest appertaining to bearer Securities maturing subsequent to the
redemption date shall be void (unless the amount of such coupons shall have
been deducted from the redemption price at the time of surrender of the
related bearer Security as aforesaid), and the only right of the Holders of
such Securities shall be to receive payment of the redemption price together
with accrued interest (unless the redemption date is an Interest Payment Date)
to the redemption date as aforesaid. If monies for the redemption of the
Securities are not made available for payment until after the redemption date,
the Securities called for redemption shall not cease to bear interest until
such monies have been so made available.
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(f) Securities redeemed or otherwise acquired by the Company will
forthwith be delivered to the Fiscal Agent for cancellation and may not be
reissued or resold, except that bearer Securities delivered to the Fiscal
Agent may, pursuant to written instructions from the Company, be reissued by
the Fiscal Agent in replacement of mutilated, lost, stolen or destroyed
Securities pursuant to Paragraph 9 hereof.
7. In the event of:
(a) default in the payment of any instalment of interest on any Security
for a period of 30 days after the date when due; or
(b) default in the payment of the principal of any security when due
(whether at maturity, upon redemption or otherwise); or
(c) failure on the part o to observe or perform in any material respect
any other term, covenant or agreement on the part of the Company contained in
the Securities which shall continue unremedied for a period of 60 days after
the date on which written notice of such failure, requiring the Company to
remedy the same and stating that such notice is a "Notice of Default", shall
first have been given to the Company and the Fiscal Agent, by registered or
certified mail, return receipt requested, by the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding; or
(d) a default under any other indebtedness of the Company for money
borrowed having unpaid principal in excess of $1,000,000 or under any
indenture or other instrument under which any such indebtedness has been
issued or by which it is governed, whether now existing or hereafter created,
shall happen and result in the failure to pay such indebtedness at maturity or
in such indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, without such indebt-
edness being paid or such acceleration being rescinded or annulled within 30
days after written notice thereof stating that such notice is a "Notice of
Default" shall first have been given to the Company and the Fiscal Agent, by
registered or certified mail, return receipt requested, by the Holders of at
least 25% in aggregate principal amount of the Securities of the time
Outstanding; or
(e) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its creditors,
or
(E) fails generally to pay its debts as they become due; or
(f) a court of competent jurisdiction enters an drder or decree under
any Bankruptcy Law that:
(A) is for relief against the company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; the
Holder of this Security may, at such Holder's option,
declare the principal of this Security and the interest
accrued hereon to be due and payable immediately by written
notice to the Company and the Fiscal Agent at its Principal
Office, and unless all such defaults shall have been cured
by the Company prior to receipt of such written notice, the
principal of this Security and the interest accrued thereon
shall become and be immediately due and payable.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
8. (a) The Company shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any person, unless:
(i) the corporation formed by such consolidation or into which the
Company is merged or the person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia (the "Successor
Corporation") and shall expressly assume, by amendment to the Fiscal Agency
Agreement signed by the Company and such Successor Corporation and delivered
to the Fiscal Agent, the due and punctual payment of the principal of and
interest on (including Additional Amounts payable pursuant to Paragraph 5
hereof) all the Securities and the performance or observance of every covenant
hereof and of the Fiscal Agency Agreement on the part of the Company to be
performed or observed; and
(ii) the Company shall have delivered to the Fiscal Agent a certificate
signed by an executive officer of the Company and a written opinion of counsel
satisfactory to the Fiscal Agent (who may be counsel to the Company), each
stating that such transaction and such amendment to the Fiscal Agency
Agreement comply with this Paragraph 8 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
(b) Upon any such consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Paragraph 8(a) hereof, the Successor Corporation
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under the Fiscal Agency Agreement and the Securities and
the coupons with the same effect as if the Successor Corporation had been
named as the Company therein and herein and thereafter the Company shall be
released from its liability as obligor on any of the Securities and the
coupons and under the Fiscal Agency Agreement.
9. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Fiscal Agent or to the paying agent
of the Company in the Borough of Manhattan, The City of New York, the Company
shall execute, and the Fiscal Agent shall authenticate and deliver in exchange
therefor, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons,
if any, appertaining to the surrendered Security.
If there be delivered to the Company and the Fiscal Agent (and the
paying agent of the Company in the Borough of Manhattan, The City of New York,
if such be the place of surrender) (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon, and (ii) such security
or indemnity as may be required by them to save each of them and any agent of
each of them harmless, then, in the absence of notice to the Company or the
Fiscal Agent (and the paying agent of the Company in the Borough of Manhattan,
The City of New York, if such be the place of surrender) that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute,
and upon its written request the Fiscal Agent shall authenticate and deliver
in lieu of any such destroyed, lost or stolen Security or in exchange for and
upon surrender of the Security to which such coupon appertains (with all
appurtenant coupons not destroyed, lost or stolen), a new Security of like
tenor and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
Upon the issuance of any new Security under this Paragraph, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and the expenses of the Fiscal Agent) connected
therewith.
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Every new Security with its coupons, if any, issued pursuant to this
Paragraph in lieu of any destroyed, lost or stolen Security, or in exchange
for a Security to which a destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if Any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone.
Any new Security delivered pursuant to this Paragraph shall be so
dated, or have attached thereto such coupons, that neither gain nor loss in
interest shall result from such exchange.
The provisions of this Paragraph 9 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Securities or coupons.
10. (a) The Fiscal Agency Agreement and the terms and conditions of
the Securities may be modified or amended by the Company and the Fiscal Agent,
without the consent of any Holders of Securities or coupons, for the purpose
of (i) adding to the covenants of the Company for the benefit of the Holders
of Securities or coupons, or (ii) surrendering any right or power conferred
upon the Company, or (iii) securing the Securities pursuant to the
requirements of the Securities or otherwise, or (iv) permitting registered
Securities to be exchanged for bearer Securities or relaxing or eliminating
the restrictions on payment of principal or interest in respect of bearer
Securities in the United States to the extent then permitted under applicable
regulations of the United States Treasury Department, and provided no adverse
tax consequences would result to the Holders of the Securities, or (v)
evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants and obligations of the
Company in the Securities, in the coupons or in the Fiscal Agency Agreement,
or (vi) curing any ambiguity or correcting or supplementing any defective
provision contained herein or in any coupon appertaining hereto or in the
Fiscal Agency Agreement, to all of which each Holder of any Security or coupon
shall, by acceptance thereof, consent.
(b) The Fiscal Agency Agreement and the terms and conditions of the
Securities may also be modified or amended by the Company and the Fiscal
Agent, and past defaults thereunder by the Company may be waived, either with
the written consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding, or by the
adoption, at a meeting duly convened and held in accordance with the
provisions of the Fiscal Agency Agreement at which a quorum is present or
represented, of a resolution by the Holders of not less than 66 2/3% in
aggregate principal amount of the Outstanding Securities present or
represented and voting at the meeting; provided that no such modification,
amendment or waiver may, without the consent or affirmative vote of the Holder
of each Security affected thereby:
(i) change the stated maturity of the principal of or any instalment of
interest on any Security, or reduce the principal amount thereof or the rate
of interest thereon, or change the obligation of the Company to pay Additional
Amounts pursuant to Paragraph 5 (except as otherwise permitted hereby), or
change the coin or currency in which any Security or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or with respect to any such Security, or
(ii) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any modification or
amendment to the Fiscal Agency Agreement or to the terms and conditions of the
Securities, or for any waiver of any past default, or reduce the requirements
for voting and quorum at any meeting of Holders of Securities at which a
resolution is to be adopted, or
(iii) modify the obligation of the Company to maintain offices or
agencies in the Borough of Manhattan, The City of New York, and in a European
city, or
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(iv) modify any of the provisions of this Paragraph 10(b), except to
provide that certain other provisions of the Fiscal Agency Agreement or the
terms and conditions of the Securities cannot be modified, amended or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for the Holders of Securities to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
(c) The Fiscal Agent shall not enter into any amendment to the
Fiscal Agency Agreement and the Company shall not modify or amend the terms
and conditions of the Securities unless there shall have been delivered to the
Fiscal Agent a certificate signed by an executive officer of the Company and a
written opinion of counsel satisfactory to the Fiscal Agent (who may be
counsel to the Company), each stating that such amendment or modification is
authorized or permitted by the Fiscal Agency Agreement or the Securities.
(d) Any modifications, amendments or waivers to the Fiscal Agency
Agreement or to the terms and conditions of the Securities in accordance with
the foregoing provisions will be conclusive and binding on all Holders of
Securities, whether or not they have given such consent, and on all Holders of
coupons, whether or not notation of such modifications, amendments or waivers
is made upon the Securities or coupons, and on all future Holders of Secu-
rities and coupons.
(e) Promptly after the execution of any amendment to the Fiscal
Agency Agreement or the effectiveness of any modification or amendment of the
terms and conditions of the securities, notice of such amendment or
modification shall be given by the Company or by the Fiscal Agent on behalf of
and at the expense of the Company to Holders of the Securities in the manner
provided in Paragraph 6(d) hereof. The failure to give such notice on a
timely basis shall not invalidate such amendment or modification, but the
Company shall cause the Fiscal Agent to give such notice as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
11. (a) The Company will not, nor will it permit any Restricted
Subsidiary to, issue, assume or guarantee any indebtedness for borrowed money
(hereinafter referred to as "Debt") secured by a mortgage, security interest,
pledge, lien or other encumbrance upon any shares of stock of any Restricted
Subsidiary without effectively providing that the Securities (together with,
if the Company shall so determine, any other indebtedness of or guarantee by
the Company ranking equally with the Securities and then existing or
thereafter created) shall be secured equally and ratably with such Debt.
(b) The Company will not, and will not permit any Restricted
Subsidiary to, issue, sell assign, transfer or otherwise dispose of, directly
or indirectly, any of the capital stock (other than nonvoting preferred stock)
of any Restricted Subsidiary (except to the Company or to one or more
Restricted Subsidiaries or for the purpose of qualifying directors); provided,
however, that this covenant shall not apply if:
(1) the entire capital stock of a Restricted Subsidiary is disposed
of in a single transaction, or in a series of related transactions, for a
consideration consisting of cash or other property which is at least equal to
the fair value of such capital stock, as determined by the Board of Directors
of the Company; or
(2) the issuance, sale, assignment, transfer or other disposition is
required to comply with the order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the
Company or of one of its Restricted Subsidiaries; or
(3) after giving effect to the issuance, sale, assignment, transfer-
or other disposition, the Company and its Restricted Subsidiaries would own
directly or indirectly at least 80% of the issued and outstanding capital
stock of such Restricted Subsidiary and such issuance, sale, assignment,
transfer or other disposition is made for a consideration consisting of cash
or other property which is at least equal to the fair value of such capital
stock, as determined by the Board of Directors of the Company.
-98-
(c) For the purposes of this Paragraph 11, "Restricted Subsidiary"
means each of American States Insurance Company, The Lincoln National Life
Insurance Company, Lincoln National Pension Insurance Company, Security-
Connecticut Life Insurance Company and The Western Casualty and Surety
Company, as well as any successor to all or a principal part of the business
of any such subsidiary, and any other subsidiary which the Company's Board of
Directors designates a Restricted Subsidiary.
12. Subject to the authentication of this Security by the Fiscal
Agent, the Company hereby certifies and declares that all acts, conditions and
things required to be done and performed and to have happened precedent to the
creation and issuance of the Securities and any coupons, and to constitute the
same the valid obligations of the Company, have been done and performed and
have happened in due compliance with all applicable laws.
[FORM OF COUPON]
[Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
U.S.$487.50
Due October 20,
LINCOLN NATIONAL CORPORATION
9 3/4% Notes Due 1995
On the date set forth hereon, LINCOLN NATIONAL CORPORATION
("Company") will pay to bearer, upon surrender hereof, the amount shown hereon
(together with any Additional Amounts in respect thereof which the Company may
be required to pay according to the terms of the Security to which this coupon
appertains) at the paying agencies set out on the reverse hereof or at such
other places outside the United States of America (including the States and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction as the Company may determine from time to time, by
United States dollar check drawn on a bank in The City of New York or transfer
to a United States dollar account maintained by the payee with a bank in
Europe, being the interest then payable on said Security.
LINCOLN NATIONAL CORPORATION
By
[Reverse of Coupon]
MORGAN GUARANTY TRUST MORGAN GUARANTY TRUST
COMPANY OF NEW YORK COMPANY OF NEW YORK
Avenues Des Arts 35 Morgan House
1040 Brussels P.O. Box 161
Belgium 1 Angel Court
London ECR 7AE
England
SWISS BANK CORPORATION BANQUE INTERNATIONALE A
P.O. Box 1132 LUXEMBOURG S.A.
Aeschenvorstadt 1 2 Boulevard Royal
CH-4002 Basle Luxembourg
Switzerland Grand Duchy of Luxembourg
-99-
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN TO CEDEL OR THE EURO-CLEAR OPERATOR BY
BENEFICIAL OWNERS WHICH ARE NOT U.S. PERSONS]
CERTIFICATE
LINCOLN NATIONAL CORPORATION
9 3/4% Notes Due 1995
This is to certify that as of the date hereof and except as
provided in the third paragraph hereof, none of the above-captioned Securities
held by you for our account is beneficially owned by citizens or residents of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof, or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source ("United States
Persons") or by persons who have purchased for resale to United States
Persons. As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on (Insert the exchange date] as to all of
the above-captioned Securities then appearing in your books as being held for
our account.
This certificate excepts and does not relate to U.S.$ principal
amount of the above-captioned Securities appearing in your books as being held
for our account but which we have sold or as to which we are not yet able to
certify and as to which we understand exchange and delivery of definitive
Securities cannot be made until we are able so to certify.
We understand that this certificate is required in connection with
certain securities and tax legislation in the United States. If
administrative or legal prodeedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated: 1989
To be dated on or after the 15th day before the Exchange Date
[Name of Account Holder]
(Authorized Signatory)
Name:
Title:
-100-
EXHIBIT D
(FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR AND CEDEL S.A.)*
CERTIFICATE
LINCOLN NATIONAL CORPORATION
9 3/4% Notes Due 1995
This is to certify with respect to U.S. $ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons being entitled to a portion of such prin-
cipal amount (our "Qualified Account Holders") a certificate with respect to
such portion substantially in the form attached hereto and (ii) that we are
not submitting herewith for exchange any portion of such Global Security
excepted in such certificates.
We further certify that as of the date hereof we have not received
any notification from any of our Qualified Account Holders to the effect that
the statements made by such Qualified Account Holders with respect to any
portion of the part submitted herewith for exchange are no longer true and
cannot be relied upon as of the date hereof.
Dated: , 1989 Yours faithfully,
To be dated no earlier than (MORGAN GUARANTY TRUST
the Exchange Date COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
Operator of the Euro-
Clear Clearance System]
(CENTRALE DE LIVRAISON DE
VALEURS
MOBILIERES S.A.]
By
A copy of the form of Exhibit C should be attached to this Exhibit D.