EXHIBIT 4(a)
LINCOLN NATIONAL CORPORATION
Debt Securities
INDENTURE
Dated as of January 15, 1987
Morgan Guaranty Trust Company of New York, Trustee
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) 7.10
310(a)(2) 7.10
310(a)(3) N.A.
310(a)(4) N.A.
310(b) 7.08; 7.10
310(c) N.A.
311(a) 7.11
311(b) 7.11
311(c) N.A.
312(a) 2.05
312(b) 10.03
312(c) 10.03
313(a) 7.06
313(b)(1) N.A.
313(b)(2) 7.06
313(c) 7.06
313(d) 7.06
314(a) 4.04
314(b) N.A.
314(c)(1) 10.04
314(c)(2) 10.04
314(c)(3) N.A.
314(d) N.A.
314(e) 10.05
314(f) N.A.
315(a) 7.01(b)
315(b) 7.05
315(c) 7.01(a)
315(d) 7.01(c)
315(e) 6.11
316(a)(last sentence) 10.06
316(a)(1)(A) 6.05
316(a)(1)(B) 6.04
316(a)(2) N.A.
316(b) 6.07
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317(a)(1) 6.08
317(a)(2) 6.09
317(b) 2.04
318(a) 10.01
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N.A. means Not Applicable.
Note: This cross-reference table is not part of the
Indenture.
ARTICLE ONE Definitions and Incorporation by Reference 1
SECTION 1.01. Definitions 1
SECTION 1.02. Other Definitions 4
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act 4
SECTION 1.04. Rules of Construction 4
SECTION 1.05. Acts of Securityholders 5
ARTICLE TWO The Securities 5
SECTION 2.01. Terms and Form 5
SECTION 2.02. Execution and Authentication 6
SECTION 2.03. Registrar and Paying Agent 7
SECTION 2.04. Paying Agent to Hold Money in Trust 7
SECTION 2.05. Securityholder Lists 7
SECTION 2.06. Transfer, Registration and Exchange 8
SECTION 2.07. Replacement Securities 8
SECTION 2.08. Outstanding Securities 9
SECTION 2.09. Temporary Securities 9
SECTION 2.10. Cancellation 9
SECTION 2.11. Defaulted Interest 9
ARTICLE THREE REDEMPTION 10
SECTION 3.01. Applicability of Article 10
SECTION 3.02. Notices to Trustee 10
SECTION 3.03. Selection of Securities to be Redeemed11
SECTION 3.04. Notice of Redemption 11
SECTION 3.05. Effect of Notice of Redemption 12
SECTION 3.06. Deposit of Redemption Price or
Securities 12
SECTION 3.07. Securities Redeemed in Part 12
ARTICLE FOUR Covenants 12
SECTION 4.01. Payment of Securities 12
SECTION 4.02. Payment of Taxes and Other Claims 12
SECTION 4.03. Corporate Existence 13
SECTION 4.04 SEC Reports 13
SECTION 4.05. Statement as to Compliance 13
SECTION 4.06. Limitation on Liens on Stock of
Restricted Subsidiaries 14
SECTION 4.07. Limitations on Issue or Disposition
of Stock of Restricted Subsidiaries 14
SECTION 4.08. Waiver of Certain Covenants 14
ARTICLE FIVE Successor Corporation 15
SECTION 5.01. When Company May Merge, etc 15
SECTION 5.02. Successor Corporation Substituted 15
ARTICLE SIX Defaults and Remedies 15
SECTION 6.01. Events of Default 15
SECTION 6.02. Acceleration 17
SECTION 6.03. Other Remedies 17
SECTION 6.04. Waiver of Past Defaults 17
SECTION 6.05. Control by Majority 18
SECTION 6.06. Limitation on Suits 18
SECTION 6.07. Rights of Holders to Receive Payment 18
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SECTION 6.08. Collection Suit by Trustee 19
SECTION 6.09. Trustee May File Proofs of Claim 19
SECTION 6.10. Priorities 19
SECTION 6.11. Undertaking for Costs 20
ARTICLE SEVEN Trustee 20
SECTION 7.01. Duties of Trustee 20
SECTION 7.02. Rights of Trustee 21
SECTION 7.03. Individual Rights of Trustee 21
SECTION 7.04. Trustee's Disclaimer 21
SECTION 7.05. Notice of Defaults 21
SECTION 7.06. Reports by Trustee to Holders 22
SECTION 7.07. Compensation and Indemnity 22
SECTION 7.08. Replacement of Trustee 23
SECTION 7.09. Successor Trustee by Merger, etc 23
SECTION 7.10. Eligibility; Disqualification 23
SECTION 7.11. Preferential Collection of Claims
Against Company. 24
ARTICLE EIGHT Discharge of Indenture 24
SECTION 8.01. Termination of Company's Obligations 24
SECTION 8.02. Termination of Company's
Obligations Under Certain Circumstances 25
SECTION 8.03. Application of Trust Money 26
SECTION 8.04. Repayment to Company 26
SECTION 8.05. Indemnity for Government Obligations 27
ARTICLE NINE Amendments, Supplements and Waivers 27
SECTION 9.01. Without Consent of Holders 27
SECTION 9.02. With Consent of Holders 27
SECTION 9.03. Compliance with Trust Indenture Act 28
SECTION 9.04. Revocation and Effect of Consents 28
SECTION 9.05. Notation on or Exchange of Securities 28
SECTION 9.06. Trustee to Sign Amendments, etc 28
ARTICLE TEN Miscellaneous 28
SECTION 10.01. Trust Indenture Act Controls 28
SECTION 10.02. Notices 29
SECTION 10.03. Communication by Holders with Other
Holders 29
SECTION 10.04. Certificate and Opinion as to
Conditions Precedent 30
SECTION 10.05. Statements required in Certificate or
Opinion 30
SECTION 10.06. When Treasury Securities Disregarded 30
SECTION 10.07. Legal Holidays 31
SECTION 10.08. Governing Law 31
SECTION 10.09. No Adverse Interpretation of Other
Agreements 31
SECTION 10.10. Successors 31
SECTION 10.11. Duplicate Originals 31
SECTION 10.12. Securities in Foreign Currencies 31
SECTION 10.13. Effect of Headings and Table of
Contents 31
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INDENTURE dated as of January 15, 1987, between Lincoln
National Corporation, an Indiana corporation ("Company"), and
Morgan Guaranty Trust Company of New York, a New York trust
company, as trustee hereunder ("Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the
Company's Securities issued hereunder:
ARTICLE ONE
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent or co-Registrar or
agent for service of notice and demands. See Section 2.03.
"Authorized Newspaper" means a newspaper printed in the
English language and customarily published at least once a day on
each business day in each calendar week and of general
circulation in New York, New York, whether or not such newspaper
is published on Legal Holidays, or, with respect to the
Securities of any series, such other newspaper(s), as may be
specified in the Board Resolution or supplement to this Indenture
pursuant to which such series of Securities is issued. Whenever,
under the provisions of this Indenture or a Board Resolution, two
or more publications of a notice or other communication are
required or permitted, such publications may be in the same or
difference newspapers. If, because of temporary or permanent
suspension of publication or general circulation of any newspaper
or for any other reason, it is impossible or impracticable to
publish any notices required by this Indenture or a Board
Resolution in the manner provided, then such publication in lieu
thereof or such other notice as shall be made with the approval
of the Trustee shall constitute a sufficient publication of such
notice.
"Board of Directors" means the Board of Directors of the
Company, or the Executive Committee or any other committee of the
Board of Directors duly authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company as
properly adopted by the Board of Directors and to be in full
force and effect and delivered to the Trustee.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the Indenture and
thereafter means the successor.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall
be principally administered.
"Default" means any event which is, or after notice or
passage of time would be, an Event of Default.
"Domestic Subsidiary" means any Subsidiary except a
Subsidiary (a) which neither transacts any substantial portion of
its business nor regularly maintains any substantial portion of
its fixed assets within the United States of America, or
(b) which is engaged primarily in financing the operations of the
Company and its Subsidiaries, or any of them, outside the United
States of America.
"Government Obligations" with respect to any series of
Securities means direct noncallable obligations of the government
which issued the currency in which the Securities of that series
are denominated, noncallable obligations the payment of the
principal of and interest on which is fully guaranteed by such
government, and noncallable obligations on which the full faith
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and credit of such government is pledged to the payment of the
principal thereof and interest thereon, and shall also include a
depositary receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder
of a depositary receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depositary receipt.
"Holder" or "Securityholder" means with respect to a
Registered Security, a person in whose name such Security is
registered on the books of the Registrar and, with respect to an
unregistered Security, the bearer thereof.
"Indenture" means this Indenture, as it may from time to
time be amended or supplemented.
"Officer" means the Chairman of the Board, the President or
any Vice President.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and the Treasurer, the Secretary, an
Assistant Treasurer or any Assistant Secretary of the Company.
See Sections 10.04 and 10.05.
"Opinion of Counsel" means a written opinion from the
General Counsel of the Company or any other legal counsel, who
may be another employee of or counsel to or for the Company, or
any other legal counsel acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides that an amount less than its principal amount is due and
payable upon acceleration after an Event of Default.
"principal", whenever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to
include "and premium, if any," and, whenever used with reference
to any Security which by its terms provides (or as to which
mandatory provisions of law provide) that less than the principal
amount thereof shall be due and payable upon a declaration of the
acceleration of the maturity thereof, and in the contexts of such
a declaration, of proving a claim under bankruptcy, insolvency or
similar laws, or of determining whether the holders of the
requisite aggregate principal amount of the Securities of any or
all series then outstanding have concurred in any request,
demand, authorization, direction, notice, consent, waiver or
other action by Securityholders hereunder, shall mean the portion
of such principal amount so provided to be due and payable upon a
declaration of acceleration of the maturity thereof.
"Redemption Date" means the date fixed for redemption of any
Security to be redeemed pursuant to this Indenture.
"Redemption Price" means the principal amount of any
Security to be redeemed.
"Registered Security" means any Security registered in the
Registrar's books.
"Restricted Subsidiary" means each of American States
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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 and any successor to all or a principal part of the
business or properties of any thereof and any other Subsidiary
which the Board of Directors by Board Resolution designates as a
Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities, as amended or
supplemented from time to time pursuant to this Indenture, that
are issued under this Indenture.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the shares of
Voting Stock.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date of this Indenture,
except as provided in Section 9.03.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and
thereafter means the successor.
"Trust Officer" means any officer or assistant officer of
the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Voting Stock" means stock of a corporation of the class or
classes having general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers
or trustees of such corporation (irrespective of whether or not
at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity on any
Security which by its terms provides (or as to which mandatory
provisions of law provide) that less than the principal amount
thereof shall be due and payable upon a declaration of
acceleration of the maturity thereof, calculated at the time of
issuance of such Security, or, if applicable, at the most recent
redetermination of interest on such Security, and calculated in
accordance with either the constant interest method or such other
method as is specified in the terms of such Security established
pursuant to Section 2.01.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Debt" 4.06
"Discharged" 8.02
"Event of Default" 6.01
"Legal Holiday" 10.07
"Paying Agent" 2.03
"Registrar" 2.03
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture
have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by SEC rule have the meanings assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in
the plural include the singular; and
(4) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles.
SECTION 1.05. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effect when such instrument or
instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Proof of execution of any
such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to
Section 7.01) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be provided by the affidavit of a
witness of such execution or by the certificate of any notary
public or other officer authorized by law to take acknowledgments
of deeds, certifying to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof
of this authority. The fact and date of the execution of any
such instrument or writing, or the authority of the person
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executing the same, may also be provided in any other manner
which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security register or by a certificate of the Registrar.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
ARTICLE TWO
The Securities
SECTION 2.01. Terms and Form.
The Securities may be issued in one or more series of
Securities and shall bear the title, interest, if any, at the
rates, from the dates, shall mature at the times, may be
redeemable at the prices and upon the terms, shall be denominated
and payable at the place or places and in the currency or
currencies (which may be other than United States dollars),
including composite currencies, and shall contain or be subject
to all terms as shall be approved by or pursuant to a Board
Resolution or in one or more supplements to this Indenture.
The Securities of each series hereunder shall be in one or
more forms approved from time to time by or pursuant to a Board
Resolution or in one or more supplements to this Indenture. If
the form of the Security of any series is approved by or pursuant
to a Board Resolution, an Officers' Certificate shall state that
all conditions precedent relating to the authentication and
delivery of such Security have been complied with and shall be
accompanied by a copy of the Board Resolution by or pursuant to
which the form of such Security has been approved. The
Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be
dated the date of its authentication. Each Security may contain
any other terms as are not inconsistent with this Indenture.
The Securities of each series may be issued as Registered
Securities without coupons or, if provided by the terms of the
instrument establishing such series of Securities, as
unregistered Securities, with or without coupons. Unless the
form of a Security of a series provides otherwise or when the
Securities are denominated in a currency other than United States
dollars, the Securities of such series shall be issued in
denominations of $1,000 or integral multiples thereof.
All Securities of any one series shall be substantially
identical except as to denomination or except as may otherwise be
provided in or pursuant to the Board resolution or supplement to
this Indenture approving the terms of the Securities of such
series.
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SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by
facsimile signatures. The Company's seal, if any, shall be
reproduced on the Securities.
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the
Security, the Security shall be valid nevertheless.
The aggregate principal amount of Securities outstanding
hereunder at any time shall be unlimited except that such
outstanding amount may not exceed the amount authorized from time
to time by the Board of Directors and except as provided in
Section 2.07. The Trustee shall authenticate Securities for
original issue upon a written order of the Company signed by two
Officers or by an Officer and the Secretary, the Treasurer, an
Assistant Secretary or an Assistant Treasurer of the Company.
A Security shall not be valid until the Trustee manually
signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. The Trustee's authentication
shall be in the following form:
This is one of the Securities of the series designated
herein referred to in the within mentioned Indenture.
Morgan Guaranty Trust Company of New
York,
as Trustee
By:
SECTION 2.03. Registrar and Paying Agent.
The Company shall designate a Registrar who shall maintain
an office or agency where Securities may be presented for
registration of transfer and where each series of Registered
Securities may be presented for exchange ("Registrar") and a
Paying Agent who shall maintain an office or agency where
Securities and coupons may be presented for payment ("Paying
Agent") and an office or agency where notices and demands to or
upon the Company in respect of the Securities and this Indenture
may be served. The Registrar shall keep a register of each
series of Registered Securities and of their transfer and
exchange. The Company may have one or more co-Registrars and one
or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent or agent for service of notices and
demands, or fails to give the foregoing notice, the Trustee shall
act as such.
The Company initially appoints the Trustee to be the
Registrar, Paying Agent and agent for service of notices and
demands.
SECTION 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent
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for the payment of principal of or interest on the Securities,
and shall notify the Trustee of any default by the Company (or
any other obligor on the Securities) in making any such payment.
If the Company or a Subsidiary acts as Paying Agent, it shall on
or before each due date of the principal of or any interest on
any Securities segregate the money and hold it as a separate
trust fund. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and the Trustee may at
any time during the continuance of any payment default, upon
written request to a Paying Agent, require such Paying Agent to
pay to the Trustee all sums so held in trust by such Paying
Agent. Upon doing so the Paying Agent shall have no further
liability for the money.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Registered Securityholders. If the
Trustee is not the Registrar, the Company shall furnish to the
Trustee from information in the possession or control of the
Company (a) on or before each interest payment date for any
series of Securities, (b) pursuant to the form of Security for
each series of non-interest bearing Securities and (c) at such
other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders, provided that if the
provisions of (a) or (b) do not provide for the furnishing of
such information at stated intervals of not more than six months,
at least as frequently as semiannually, not later than May 15 and
November 15 of each year.
SECTION 2.06. Transfer, Registration and Exchange.
When a Registered Security is presented to the Registrar or
a co-Registrar in proper form for registration of transfer with a
request to register a transfer, the Registrar or co-Registrar
shall register the transfer as requested.
At the option of the Securityholder, Securities of any
series may be exchanged for Securities of the same series of like
aggregate principal amount and stated maturity and of other
authorized denominations. The Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor the
Security or Securities which the Securityholder making the
exchange shall be entitled to receive.
Every Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit transfers and exchanges,
the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's request. The
Company may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed for any exchange
or transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Securities of any series for a period
of 15 days next preceding any selection of Securities of such
series to be redeemed, or (b) to register the transfer of or
exchange any Securities of any series selected, called or being
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called for redemption in whole or in part except, in the case of
any Security to be redeemed in part, the portion thereof not so
to be redeemed.
SECTION 2.07. Replacement Securities.
If the Holder of a mutilated Security surrenders such
Security to the Trustee or if the Holder of a Security presents
evidence to the satisfaction of the Company and the Trustee that
the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a
replacement Security of the same series. In case any such
Security has or is about to become due and payable, the Company
may pay the Security instead of issuing a new Security. If
required by the Trustee or the Company, an indemnity bond must be
provided which is sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced.
The Company and the Trustee may charge the Holder for their fees
and expenses in replacing a Security.
Every replacement Security is an additional obligation of
the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with any and all other
Securities of that series duly issued under this Indenture.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities
authenticated by the Trustee except for those cancelled by it and
those described in this Section. A Security does not cease to be
outstanding because the Company or one of its affiliates holds
the Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the Paying Agent holds on a redemption date or maturity
date money sufficient to pay Securities payable on that date,
then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
If the Company is deemed to be discharged from its
obligations with respect to the Securities of any series pursuant
to Section 8.01 or 8.02(a), the Securities of such series shall
cease to be outstanding.
SECTION 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the
form of definitive Securities but may have variations that the
Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Securities in exchange for
temporary Securities.
SECTION 2.10. Cancellation.
The Company at any time may deliver Securities or coupons to
the Trustee for cancellation. The Registrar and Paying Agent
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shall forward to the Trustee any Securities surrendered to them
for transfer, exchange or payment and all coupons surrendered for
payment. The Trustee shall cancel and destroy all Securities
surrendered for transfer, exchange, payment or cancellation and
all coupons surrendered for payment. The Company may not issue
new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on any
series of Registered Securities, and so long as the Trustee deems
the following procedure practicable, the Company shall pay the
defaulted interest to persons who are Holders of Registered
Securities of such series on a subsequent special record date in
the following manner. The Company shall fix the special record
date for the payment of such defaulted interest on such
Securities (which shall be between 10 and 30 days before the
payment date) and payment date for such defaulted interest. At
least 15 days before the special record date, the Company shall
mail each Holder of Registered Securities a notice that states
the special record date, the payment date and the amount of
defaulted interest to be paid. The Company may pay defaulted
interest in any other lawful manner.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Applicability of Article.
This Article shall apply to the Securities of each series,
if any, that by their terms are subject to redemption at the
option of the Company or pursuant to the operation of a sinking
fund. If the terms of any Security shall conflict with any
provision of this Article, the terms of such Security shall
govern.
SECTION 3.02. Notices to Trustee.
If the Company wants to redeem Securities of any series
pursuant to the terms of the Securities of that series, the
Company shall notify the Trustee of the redemption date and the
principal amount of the Securities to be redeemed. Each such
notice shall be accompanied by an Officers' Certificate stating
that any conditions to such redemption as provided in such
Security and in this Article have been complied with. If the
Company elects to redeem less than all of the Securities of a
series, the Company shall notify the Trustee of such redemption
date and of the principal amount of such Securities to be
redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Securities to
be redeemed pursuant to Section 3.03.
If Securities of any series by its terms is redeemable
pursuant to the operation of a sinking fund, the Company shall
notify the Trustee by an Officers' Certificate of the amount of
the next sinking fund payment and the portion of such payment
which is to be satisfied by delivering and crediting Securities
of the same series pursuant to Section 3.06.
If the Company wants to reduce the principal amount of
Securities to be redeemed pursuant to the terms of such
Securities, it shall notify the Trustee by Officers' Certificate
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of the amount of the reduction and the basis for it. If the
Company wants to credit against any such redemption Securities of
the same series it has not previously delivered to the Trustee
for cancellation, it shall deliver the Securities with such
Officers' Certificate.
The Company shall give each notice or Officers' Certificate
provided for in this Section at least 50 days before the
Redemption Date (unless shorter notice is satisfactory to the
Trustee).
SECTION 3.03. Selection of Securities to be Redeemed.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select the Securities to be redeemed
by a method the Trustee considers fair and appropriate. The
Trustee shall make the selection from Securities of such series
outstanding not previously called for redemption. The Trustee
may select for redemption portions of the principal of Securities
of such series that have denominations larger than the minimum
authorized denomination of Securities of that series. Securities
and portions thereof the Trustee selects shall be in amounts
equal to the smallest authorized denominations or an integral
multiple thereof. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.04. Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall give notice of such redemption
to the Holders of the Securities to be redeemed as a whole or in
part, with respect to Registered Securities, by mailing a notice
of such redemption by first-class mail to each Holder of
Registered Securities to be redeemed and, with respect to
unregistered Securities, by publishing in an Authorized Newspaper
notice of such redemption on two separate days.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price and accrued interest, if any;
(3) if less than all Securities of a series outstanding are
to be redeemed, the identification (and, if any Security is
to be redeemed in part, the principal amount) of the
particular Security to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price and accrued interest, if any;
(6) that interest on Securities called for redemption
ceases to accrue on and after the Redemption Date; and
(7) that the redemption is pursuant to a sinking fund, if
such is the case.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at its expense.
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SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at
the applicable Redemption Price. Upon surrender to the Paying
Agent, such Securities shall be paid at the applicable Redemption
Price, plus accrued interest to the Redemption Date; provided,
however, that any regular payment of interest becoming due on the
Redemption Date shall be payable to the Holders of such
Securities in accordance with their terms.
SECTION 3.06. Deposit of Redemption Price or Securities.
On or before the Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company is its own Paying Agent,
shall segregate and hold in trust) money sufficient to pay the
Redemption Price of and accrued interest on all Securities to be
redeemed on that date.
If any Security by its terms permits any sinking fund
payment obligation to be satisfied by delivering and crediting
Securities, the Company shall deliver such Securities to the
Trustee for crediting against such payment obligation in
accordance with the terms of such Securities and this Indenture.
SECTION 3.07. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Trustee shall authenticate for the Holder a new Security of the
same series equal in principal amount to the unredeemed portion
of the Security surrendered.
ARTICLE FOUR
Covenants
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and any interest on
the Securities of each series on the dates and in the manner
provided in the Securities and this Indenture. At the Company's
option, it can pay any interest on Registered Securities of any
series by mailing checks or drafts to the holders of such
Securities at their addresses as shown on the Registrar's books.
The Company shall pay interest on overdue principal of any
Security at the rate borne by such Security (or, such Security's
yield to maturity, if applicable); it shall pay interest on
overdue installments of interest at the same rate to the extent
lawful.
SECTION 4.02. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed
upon the Company or any Domestic Subsidiary or upon the income,
profits or property of the Company or any Domestic Subsidiary,
and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of
the Company or any Domestic Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
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SECTION 4.03. Corporate Existence.
Subject to Article Five, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 4.04 SEC Reports.
The Company shall file with the Trustee within 15 days after
it files them with the SEC copies of the annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with
the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934. The Company also shall comply with the
other provisions of TIA Sect. 314(a).
SECTION 4.05. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement, which
need not comply with Section 10.05 hereof, signed by the Chairman
of the Board, the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant
Controller of the Company, stating, as to each signer thereof,
that
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision, and
(2) to the best of his knowledge, based on such
review, (a) the Company has fulfilled all its obligations
under this Indenture throughout such year, or, if there has
been a default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or
both would become, an Event of Default under clause (3) or
(4) of Section 6.01, or, if such an event has occurred and
is continuing, specifying each such event known to him and
the nature and status thereof.
SECTION 4.06. Limitation on Liens on Stock of Restricted
Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, issue, assume or guarantee any debt for money
borrowed (hereafter in this Section referred to as "Debt")
secured by a mortgage, security interest, pledge, lien or other
encumbrance upon any shares of stock of any Restricted Subsidiary
(whether such shares of stock are now owned or hereafter
acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guarantee of any
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such Debt 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.
SECTION 4.07. Limitations on Issue or Disposition of Stock of
Restricted Subsidiaries.
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 Registered
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; 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.
SECTION 4.08. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Section 4.02, 4.03,
4.06 or 4.07, if before or after the time for such compliance the
Holders of at least a majority in principal amount of all
outstanding Securities, and the Holders of at least a majority in
principal amount of the outstanding Securities of each series to
be affected, if the Holders of one or more but less than all the
series of outstanding Securities are to be affected, shall either
waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
ARTICLE FIVE
Successor Corporation
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, another
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corporation unless the successor or transferee corporation, which
shall be a corporation organized and existing under the laws of
the United States or a State thereof or the District of Columbia,
assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture and the Company
shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture comply with
this Indenture. Thereafter all such obligations of the
predecessor corporation shall terminate.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with
Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation
had been named as the Company herein.
ARTICLE SIX
Defaults and Remedies
SECTION 6.01. Events of Default.
An "Event of Default" occurs with respect to the Securities
of any series if:
(1) the Company defaults in the payment of interest, if
any, on any Security of such series when the same becomes due and
payable and the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Security of such series when the same becomes due and payable
at maturity, upon redemption (if applicable) or otherwise;
(3) the Company fails to comply with any of its other
covenants, conditions or agreements in the Securities of such
series or this Indenture, unless such covenants, conditions or
agreements are solely for the benefit of the Securities of a
different series, and the default continues for the period and
after the notice specified below;
(4) 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 such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due
and payable, without such acceleration being rescinded or
annulled within the period and after the notice specified below;
(5) 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,
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(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;
(6) a court of competent jurisdiction enters an order 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; or
(7) any other event shall occur constituting an Event of
Default with respect to the Securities of such series.
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.
A default with respect to the Securities of any series under
clause (3) or clause (4) is not an Event of Default until the
Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Securities of such series
notify the Company and the Trustee of the default and the Company
does not cure the default within 60 days in the case of clause
(3) and 30 days in the case of clause (4) after receipt of the
notice. The notice must specify the default, demand that it be
remedied and state that the notice is a "Notice of Default."
Subject to the provisions of Sections 7.01 and 7.02, the
Trustee shall not be charged with knowledge of any default unless
written notice thereof shall have been given to the Trustee
pursuant to Section 10.02 by the Company, the Paying Agent, the
Holder of a Security or an agent of such Holder.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities of any
series occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in principal amount of
the outstanding Securities of such series by notice to the
Company and the Trustee, may declare the principal of and accrued
interest, if any, on all the Securities of such series to be due
and payable immediately. Upon such declaration such principal
and interest, if any, shall be due and payable immediately. The
Holders of a majority in principal amount of the outstanding
Securities of such series by notice to the Company and the
Trustee may rescind an acceleration and its consequences if all
existing Events of Default with respect to the Securities of such
series, other than the non-payment of the principal of the
Securities which have become due solely by such declaration of
acceleration, have been cured or waived, if interest on overdue
principal which has become due otherwise than by such declaration
of acceleration, and to the extent that payment of such interest
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is lawful, interest on overdue installments of interest, in each
case at the rate, if any, borne (or Yield to Maturity if Original
Issue Discount Securities) by the Securities of such series, have
been paid, and if the rescission would not conflict with any
judgment or decree. No such rescission shall have any affect on
any subsequent default or impair any right consequent thereon.
SECTION 6.03. Other Remedies.
If an Event of Default with respect to the Securities of any
series occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities of such
series or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities of such series or does not produce
any of them in the proceeding. A delay or omission by the
Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
Subject to Section 6.02 and Section 9.02, the Holders of a
majority in principal amount of the outstanding Securities of any
series on behalf of the Holders of all the Securities of such
series by notice to the Trustee may waive an existing Default or
Event of Default and its consequences. When a Default or Event
of Default is waived, it is cured and stops continuing, but no
such waiver shall extend to any subsequent or other default, or
impair any right consequent thereon.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the
outstanding Securities of any series may direct the time, method
and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it
with respect to the Securities of such series. The Trustee,
however, may refuse to follow any direction (a) that conflicts
with law or this Indenture, (b) that the Trustee determines is
unduly prejudicial to the rights of another Holder of Securities
of such series or (c) that would involve the Trustee in personal
liability. The Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
A Holder of Securities of any series may not pursue any
remedy with respect to this Indenture or the Securities of such
series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
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satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the outstanding
Securities of such series.
A Holder may not use this Indenture to prejudice any other
Holder or to obtain a preference or priority over any other
Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal
of and any interest on the Security, on or after the respective
due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or
affected without the consent of the Holder.
Nothing in this Indenture is deemed to authorize the Trustee
to authorize, consent to, accept or adopt on behalf of any Holder
of Securities of any series any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of such series or the rights of any Holder thereof or to
authorize the Trustee to vote with respect to the claims of any
such Holder in any such proceeding.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing for
the Securities of any series, the Trustee may recover judgment in
its own name and as trustee of an express trust against the
Company or any other obligor on the Securities of such series for
the whole amount of principal and interest remaining unpaid on
the Securities of such series together with interest on overdue
principal and to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each
case at the rate borne (or Yield to Maturity if Original Issue
Discount Securities) by the Securities and such further amount as
shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have
the claims of the Trustee and any predecessor Trustee (including
any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel) and the Holders of Securities
allowed in any judicial proceedings relative to the Company or
any other obligor upon the Securities of any series, its
creditors or its property. The Trustee shall be entitled and
empowered to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
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same. Any Custodian in any such judicial proceeding is hereby
authorized by each Holder of Securities of such series to make
such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the
Holders of Securities, to pay to the Trustee and any predecessor
Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee and any predecessor Trustee under Section
7.07.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article
with respect to the Securities of any series, it shall pay out
the money in the following order:
First: to the Trustee and any predecessor Trustee for
amounts due under Section 7.07;
Second: to Holders of Securities of such series for amounts
due and unpaid on the Securities for principal and any interest,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities for principal and
any interest, respectively; and
Third: to the Company.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of any series.
ARTICLE SEVEN
Trustee
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise its rights and powers and use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
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to the requirements of this Indenture. The Trustee, however,
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or officers
of the Trustee, which may include Trust Officers, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c)
of this Section.
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not
be segregated except to the extent required by law. The Trustee
shall not be liable for interest on any money received by it
except as the Trustee may agree with the Company.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e) Any demand, request, direction or notice from the
Company mentioned herein shall, unless otherwise specifically
provided, be sufficiently evidenced by a demand, request,
direction or notice signed by an Officer of the Company.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal
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with the Company or its affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like
rights. The Trustee, however, must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representations as to the validity or
adequacy of this Indenture or the Securities; it shall not be
accountable for the Company's use of the Securities or the
proceeds from the Securities; and it shall not be responsible for
any statement in the Securities other than its certificate of
authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to
Securities and if it is known to the Trustee, the Trustee shall
give to each Holder of Securities of any series to which such
default relates, in the manner and to the extent provided in TIA
Sect. 313(c), and otherwise as provided in Section 10.02 of this
Indenture, notice of the Default within 90 days after it occurs.
Except in the case of a default in payment of principal of or
interest on a Security of any series, or in the payment of any
sinking or purchase fund installment, the Trustee may withhold
the notice if and so long as the board of directors of the
Trustee, the executive committee or a trust committee of
directors and/or of responsible officers, which may include Trust
Officers, of the Trustee in good faith determines that
withholding the notice is in the interests of Holders of
Securities of such Series.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to
each Securityholder a brief report dated as of such May 15 that
complies with TIA Sect. 313(a). The Trustee also shall comply with
TIA Section 313(b)(2). Reports to Holders pursuant to this Section
7.06 shall be transmitted in the manner and to the extent
provided in TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange on which the Securities of such series are listed.
The Company agrees to notify the Trustee whenever the
Securities of any series become listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust). The Company
shall reimburse the Trustee and any predecessor trustee upon
request for all reasonable out-of-pocket expenses and advances
incurred or made by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and
counsel. The Company shall indemnify each of the Trustee and any
predecessor Trustee against any loss or liability (including
legal fees and expenses) incurred by it in connection with the
acceptance and administration of the trust and the performance of
its duties hereunder, including the costs and expenses of
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defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any
claim asserted against it for which it may seek indemnity;
provided, however, that the failure to give the Company any
notice of any claim shall not in any way affect the rights of the
Trustee hereunder to indemnification for such claim. The Company
need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee or any predecessor Trustee to
the extend due to its own negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that
held in trust to pay principal of and interest on the Securities.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(5) or 6.01(6)
occurs, the expenses and the compensation for services are
intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the removed
Trustee and may appoint a successor Trustee with respect to the
Securities. The Company may remove the Trustee with respect to
all Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall, upon payment
of its charges, transfer all property held by it as Trustee to
the successor Trustee, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall give notice of its
succession to each Holder of Securities.
If a successor Trustee does not take office within 45 days
after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal
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amount of the outstanding Securities may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $5,000,000 as set forth
in its most recent published annual report of condition. If any
series of Securities is admitted to trading on the New York Stock
Exchange, Inc., or any successor thereto, the Trustee shall
maintain an office or agency in The Borough of Manhattan, The
City of New York as long as such series of Securities shall be so
admitted. The Trustee shall comply with TIA Section 310(b), including
the optional provision permitted by the second sentence of TIA
Section 310(b)(9); provided, however, that there shall be excluded from
the operation of TIA Sect. 310(b) the Indenture dated as of
September 15, 1982 between the Company and Morgan Guaranty Trust
Company of New York, as Trustee, for the Company's 13-7/8% Notes
due September 15, 1992.
SECTION 7.11. Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE EIGHT
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations.
The Company may terminate all of its obligations under the
Securities of any series and this Indenture with respect to such
series if all Securities of such series previously authenticated
and delivered (other than destroyed, lost or stolen Securities of
such series which have been replaced or paid) have been delivered
to the Trustee for cancellation or if:
(1) the Securities of such series mature within one
year or all of them are to be called for redemption within
one year under arrangements satisfactory to the Trustee for
giving the notice of redemption; and
(2) the Company irrevocably deposits in trust with the
Trustee money sufficient to pay principal of and any
interest on the Securities of such series to maturity or
redemption, as the case may be (other than moneys paid to
the Company or discharged from trust in accordance with
Section 8.04).
The Company's obligations in Sections 2.03, 2.04, 2.05,
2.06, 2.07, 7.07, 7.08, 8.03 and 10.10 with respect to the
Securities of such series, however, shall survive so long as any
principal of or interest, if any, on the Securities of such
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series remains unpaid. Thereafter the Company's obligations in
Sections 7.07 and 10.10 shall survive.
After a deposit of such moneys, the Trustee upon request
shall acknowledge in writing the discharge of the Company's
obligations under the Securities of such series and this
Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
SECTION 8.02. Termination of Company's Obligations Under Certain
Circumstances.
Unless otherwise provided in an indenture supplemental
hereto with respect to the Securities of any series, the Company,
at its option, either (a) shall be deemed to have been Discharged
(as defined below) from its obligations with respect to the
Securities of any series on the ninety-first day after the
applicable conditions set forth below have been satisfied or
(b) shall cease to be under any obligation to comply with any
term, provision or condition set forth in Sections 4.02, 4.03,
4.06 and 4.07 with respect to the Securities of any series and
any other covenants provided in a Board Resolution delivered to
the Trustee pursuant to Section 2.01 or an indenture supplemental
hereto with respect to the Securities of such series at any time
after the applicable conditions set forth below have been
satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of
such series (A) money in an amount, or (B) Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will provide, not later than one day (or, if such day is a
Legal Holiday, the first day preceding such day which is not
a Legal Holiday) before the due date of any payment, money
in an amount, or (C) a combination of (A) and (B),
sufficient, in the opinion of a nationally recognized firm
of independent public accountants selected by the Company
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge each installment of
principal (including mandatory sinking fund payments) of and
interest, if any, on the outstanding Securities of such
series on the dates such installments of principal and
interest, if any, are due (taking into account any
redemption pursuant to optional sinking fund payments notice
of which redemption is provided to the Trustee at the time
of the deposit referred to in this paragraph (1));
(2) if the Securities of such series are then listed
on the New York Stock Exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect
that the Company's exercise of its option under this
paragraph would not cause such Securities to be delisted;
(3) no Event of Default, or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default, with respect to the Securities of such
series under Sections 6.01(1), 6.01(2), 6.01(3), 6.01(5) or
6.01(6) of this Indenture shall have occurred and be
continuing on the date of such deposit and the Company shall
have furnished to the Trustee an Officers' Certificate to
such effect; and
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(4) the Company shall have delivered to the Trustee
the following: (a) either (i) an Opinion of Counsel or
(ii) a ruling from, or published by, the Internal Revenue
Service, whichever of (i) or (ii) the Company shall
determine, to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the Company's
exercise of its option under this Section 8.02 and will be
subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the
case if such option had not been exercised and (b) either
(i) an Opinion of Counsel or (ii) a no-action letter from,
or issued by, the Securities and Exchange Commission,
whichever of (i) or (ii) the Company shall determine, to the
effect that the deposit with the Trustee of money and/or
Government Securities as trust funds as provided in this
Section 8.02 will not be considered an investment company
required to be registered under the Investment Company Act
of 1940, as amended.
"Discharged" means, for purposes of this Section 8.02, that
the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, the
Securities of any series and to have satisfied all the
obligations under this Indenture relating to the Securities of
such series (and the Trustee, at the expense of the Company,
shall execute such instruments as may be requested by the Company
acknowledging the same), except (A) the rights of Holders of
Securities of such series to receive, solely from the trust fund
described above, payment of the principal of and interest, if
any, on such Securities when such payments are due; (B) the
Company's obligations with respect to such Securities under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.03 and
10.10; and (C) the rights, powers, duties and immunities of the
Trustee hereunder. Notwithstanding the satisfaction and
discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee and any
predecessor Trustee under Section 7.07 and 10.10 shall survive.
SECTION 8.03. Application of Trust Money.
All moneys and Government Obligations deposited with the
Trustee pursuant to Section 8.01 and 8.02 and, with respect to
Government Obligations, the principal and interest in respect
thereof, shall be held irrevocably in trust and applied by it to
the payment in accordance with the provisions of the Securities
of any series and this Indenture, either directly or through any
Paying Agent (including the Company if acting as its own Paying
Agent), to the Holders of the Securities of such series for the
payment or redemption of which such money has been deposited with
the Trustee, of all sums due and to become due thereon for
principal and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon request any excess money or securities held by them
at any time. Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of or interest on any Security and remaining
unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Company on request,
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or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 8.05. Indemnity for Government Obligations.
The Corporation shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against deposited Government Obligations or the principal and
interest received on such Government Obligations.
ARTICLE NINE
Amendments, Supplements and Waivers
SECTION 9.01. Without Consent of Holders.
The Company may amend or supplement this Indenture or the
Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(4) to establish the form or terms of Securities of
any series permitted by Section 2.01; or
(5) to make any change that does not adversely affect
the rights of any Securityholder in a material manner.
SECTION 9.02. With Consent of Holders.
The Company may amend or supplement this Indenture or the
Securities without notice to any Securityholder but with the
written consent of the Holders of at least 66-2/3% in principal
amount of the outstanding Securities of each series affected by
such indenture supplement or amendment voting as one class. The
Holders of a majority in principal amount of the outstanding
Securities of each such series affected may waive compliance by
the Company in a particular instance with any provision of this
Indenture or the Securities of such series without notice to any
Holder of Securities of such series. Without the consent of each
Securityholder affected, however, an amendment, supplement or
waiver, including a rescission pursuant to Section 6.02 or waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment
of interest, if any, on any Security;
(3) reduce the principal of or extend the fixed
maturity of any Security;
(4) change the amount or time of any payment required
by any Security;
(5) waive a default in the payment of the principal of
or interest on any Security; or
(6) make any Security payable in money other than that
stated in the Security.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
supplement, but it shall be sufficient if such consent approves
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the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver or to any
other action hereunder by a Holder of a Security of any series
shall bind the Holder and every subsequent Holder of a Security
or portion of a Security of that series that evidences the same
debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. Any such Holder or
subsequent Holder, however, may revoke the consent as to his
Security or portion of a Security. Such revocation shall be
effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver or other
action becomes effective.
After an amendment, supplement or waiver with respect to a
series of Securities becomes effective, it shall bind every
Holder of Securities of that series.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may request the Holder of the Security to
deliver it to the Trustee. The Trustee may then place an
appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company so
determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects
the changed terms.
SECTION 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement
authorized pursuant to this Article if the amendment or
supplement does not adversely affect the rights, duties,
liabilities (present or potential), or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing
such amendment or supplement, the Trustee shall be entitled to
receive, and (subject to Sections 7.01 and 7.02) shall be fully
protected in relying upon an Opinion of Counsel stating that such
amendment or supplement is authorized or permitted by this
Indenture.
ARTICLE TEN
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included
in this Indenture by the TIA Section 310 to 317, inclusive, the
required provision shall control.
SECTION 10.02. Notices.
Any notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first-class mail
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addressed as follows:
if to the Company:
Lincoln National Corporation
1300 South Clinton Street
Fort Wayne, Indiana 46801
Attention: Treasurer
if to the Trustee:
Morgan Guaranty Trust Company of New York
30 West Broadway
New York, New York 10015
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications. Any notice or communication mailed to
a Holder of a Registered Security shall be mailed to him by first
class mail at his address as it appears on the registration books
of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
Any notice required or permitted to be given to a Holder of
unregistered Securities of any series shall be deemed to be
properly given if such notice is published in an Authorized
Newspaper on two separate days.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it.
In case, by reason of the suspension of regular mail service
or by reason of any other cause, it shall be impossible to mail
any notice as required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee
shall constitute a sufficient mailing of such notice.
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Sect. 312(b)
with other Securityholders with respect to their rights under
this Indenture or the Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA
Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, except in the
case of any request or application as to which the furnishing of
such documents is specifically required by any provision of this
Indenture relating to such particular request or application no
additional certificate or opinion need be furnished, the Company
shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
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(2) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been
complied with.
SECTION 10.05. Statements required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition
and the definitions relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such person,
he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the opinion
of such person, such condition or covenant has been complied
with.
SECTION 10.06. When Treasury Securities Disregarded.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or any other obligor
upon the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company or such obligor shall be disregarded,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned
shall be so disregarded. Securities so owned which have been
pledged in good faith shall not be disregarded if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to the Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or such obligor.
SECTION 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open. If a payment
date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 10.08. Governing Law.
The laws of the State of New York shall govern this
Indenture and the Securities. Unless the form of Security
provides otherwise, all money or dollar amounts expressed herein
or in the Securities refer to United States dollars.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
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indenture, loan or debt agreement of the Company or a Subsidiary.
Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 10.10. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor and assigns, whether so
expressed or not. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 10.11. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 10.12. Securities in Foreign Currencies.
Wherever this Indenture provides for any action by, or the
determination of any of the rights of, or any distribution to,
Holders of Securities denominated in United States dollars and in
any other currency, in the absence of any provision to the
contrary in the form of Security of any particular series, any
amount in respect of any Security denominated in a currency other
than United States dollars shall be treated for any such action,
determination or distribution as that amount of United States
dollars that could be obtained for such amount on such reasonable
basis of exchange and as of such date as the Company may specify
in a written notice to the Trustee.
SECTION 10.13. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and do not constitute a part of
this Indenture and shall not affect the meaning, construction or
effect of this Indenture.
SIGNATURES
Dated: as of January 15, 1987
LINCOLN NATIONAL CORPORATION
By: /s/ Max A. Roesler
Vice President
Attest:
/s/ Marilyn A. Vachon
Secretary (SEAL)
Dated: as of January 15, 1987
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ R. E. Sparrow
Vice President
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Attest:
/s/ W. A. Spooner
Assistant Secretary (SEAL)