EXHIBIT 4.4
AETNA LIFE AND CASUALTY COMPANY
TO
THE FIRST NATIONAL BANK OF CHICAGO, TRUSTEE
__________
SUBORDINATED INDENTURE
Dated as of , 1994
__________
Debentures
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AETNA LIFE AND CASUALTY COMPANY
Reconciliation and tie between certain Sections of
this Indenture, dated as of , 1994, and
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310 (a)(1).................................. 609
(a)(2).................................. 609
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b) .................................. 608
610
Section 311 (a)..................................... 613
(b)..................................... 613
Section 312 (a)..................................... 701
702(a)
(b)..................................... 702(b)
(c)..................................... 702(c)
Section 313 (a)..................................... 703(a)
(b)..................................... 703(a)
(c)..................................... 703(a)
(d)..................................... 703(b)
Section 314 (a)..................................... 704
(a)(4).................................. 101
1004
(b)..................................... Not Applicable
(c)(1).................................. 102
(c)(2).................................. 102
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 102
Section 315 (a)..................................... 601
(b)..................................... 602
(c)..................................... 601
(d)..................................... 601
(e)..................................... 516
Section 316 (a)..................................... 101
(a)(1)(A)............................... 503
504
514
(a)(1)(B)............................... 515
(a)(2).................................. Not Applicable
(b)..................................... 510
(c)..................................... 104(c)
Section 317 (a)(1).................................. 505
(a)(2).................................. 506
(b)..................................... 1003
Section 318 (a)..................................... 107
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.............................................. 1
Act...................................................... 2
Additional Amounts....................................... 2
Additional Interest...................................... 2
Authenticating Agent..................................... 2
Board of Directors....................................... 3
Board Resolution......................................... 3
Business Day............................................. 3
Capital.................................................. 3
Commission............................................... 3
Common Security.......................................... 3
Common Stock............................................. 3
Company.................................................. 4
Company Request.......................................... 4
Company Order............................................ 4
Corporate Trust Office................................... 4
corporation.............................................. 4
Covenant Defeasance...................................... 4
Debenture................................................ 4
Debenture Register....................................... 4
Debenture Registrar...................................... 4
Debt..................................................... 4
Defaulted Interest....................................... 5
Defeasance............................................... 5
Depositary............................................... 5
Event of Default......................................... 5
Exchange Act............................................. 5
Floating or Adjustable Rate Debenture.................... 5
Floating or Adjustable Rate Provision.................... 5
Global Debenture......................................... 5
Guarantee................................................ 5
Holder................................................... 6
Indenture................................................ 6
Interest Payment Date.................................... 6
Junior Subordinated Payment.............................. 6
L.L.C. Agreement......................................... 6
Managing Members......................................... 6
Maturity................................................. 6
Notice of Default........................................ 6
Officers' Certificate.................................... 6
Opinion of Counsel....................................... 7
Outstanding.............................................. 7
Paying Agent............................................. 8
Person................................................... 8
Place of Payment......................................... 8
Predecessor Debenture.................................... 8
Preferred Security....................................... 8
Proceeding............................................... 8
Redemption Date.......................................... 9
Redemption Price......................................... 9
Regular Record Date...................................... 9
Responsible Officer...................................... 9
Security Exchange........................................ 9
Senior Debt.............................................. 9
Special Record Date...................................... 10
Stated Maturity.......................................... 10
Subsidiary............................................... 10
Trustee.................................................. 10
Trust Indenture Act...................................... 10
U.S. Government Obligations.............................. 10
Vice President........................................... 10
Written Action........................................... 10
Section 102. Compliance Certificates and Opinions..................... 11
Section 103. Form of Documents Delivered to Trustee................... 11
Section 104. Acts of Holders; Record Dates............................ 12
Section 105. Notices, Etc., to Trustee and Company.................... 14
Section 106. Notice to Holders; Waiver................................ 15
Section 107. Conflict with Trust Indenture Act........................ 15
Section 108. Effect of Headings and Table of Contents................. 16
Section 109. Successors and Assigns................................... 16
Section 110. Separability Clause...................................... 16
Section 111. Benefits of Indenture.................................... 16
Section 112. Governing Law............................................ 16
Section 113. Legal Holidays........................................... 16
Section 114. Personal Immunity from Liability for Incorporators,
Stockholders, Etc........................................ 17
ARTICLE TWO
Debenture Form
Section 201. Forms Generally.......................................... 17
Section 202. Form of Face of Debenture................................ 18
Section 203. Form of Reverse of Debenture............................. 20
Section 204. Form of Legend for Global Debentures..................... 23
Section 205. Form of Trustee's Certificate of
Authentication........................................... 23
ARTICLE THREE
The Debentures
Section 301. Amount Unlimited; Issuable in Series..................... 24
Section 302. Denominations............................................ 27
Section 303. Execution, Authentication, Delivery and
Dating................................................... 27
Section 304. Temporary Debentures..................................... 29
Section 305. Registration, Registration of Transfer and
Exchange................................................. 30
Section 306. Mutilated, Destroyed, Lost and Stolen
Debentures............................................... 32
Section 307. Payment of Interest; Interest Rights
Preserved................................................ 33
Section 308. Persons Deemed Owners.................................... 35
Section 309. Cancellation............................................. 35
Section 310. Computation of Interest.................................. 36
Section 311. Additional Interest...................................... 36
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.................. 36
Section 402. Application of Trust Fund................................ 38
ARTICLE FIVE
Remedies
Section 501. Events of Default........................................ 39
Section 502. Acceleration of Maturity................................. 42
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................. 45
Section 504. Trustee May File Proofs of Claim......................... 46
Section 505. Trustee May Enforce Claims Without Possession of
Debentures............................................... 47
Section 506. Application of Money Collected........................... 47
Section 507. Limitation on Suits...................................... 48
Section 508. Unconditional Right of Holders to Receive Principal,
Premium Interest......................................... 49
Section 509. Restoration of Rights and Remedies....................... 49
Section 510. Rights and Remedies Cumulative........................... 49
Section 511. Delay or Omission Not Waiver............................. 50
Section 512. Control by Holders....................................... 50
Section 513. Waiver of Past Defaults.................................. 51
Section 514. Undertaking for Costs.................................... 51
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities...................... 52
Section 602. Notice of Defaults....................................... 52
Section 603. Certain Rights of Trustee................................ 53
Section 604. Not Responsible for Recitals or Issuance of
Debentures............................................... 54
Section 605. May Hold Debentures...................................... 55
Section 606. Money Held in Trust...................................... 55
Section 607. Compensation and Reimbursement........................... 55
Section 608. Disqualification; Conflicting Interests.................. 56
Section 609. Corporate Trustee Required; Eligibility.................. 56
Section 610. Resignation and Removal; Appointment of
Successor................................................ 56
Section 611. Acceptance of Appointment by Successor................... 58
Section 612. Merger, Conversion, Consolidation or Succession to
Business................................................. 60
Section 613. Preferential Collection of Claims Against
Company.................................................. 60
Section 614. Appointment of Authenticating Agent...................... 60
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders..................................... 62
Section 702. Preservation of Information; Communications to
Holders.................................................. 63
Section 703. Reports by Trustee....................................... 63
Section 704. Reports by Company....................................... 64
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.................................................... 64
Section 802. Successor Substituted.................................... 65
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Holders.................................................. 66
Section 902. Supplemental Indentures with Consent of
Holders.................................................. 67
Section 903. Execution of Supplemental Indentures..................... 69
Section 904. Effect of Supplemental Indentures........................ 69
Section 905. Conformity with Trust Indenture Act...................... 70
Section 906. Reference in Debentures to Supplemental
Indentures............................................... 70
Section 907. Waiver of Compliance by Holders.......................... 70
Section 908. Subordination Unimpaired................................. 70
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest............... 71
Section 1002. Maintenance of Office or Agency.......................... 71
Section 1003. Money for Debentures Payments to Be Held in
Trust.................................................... 72
Section 1004. Statement by Officers as to Default...................... 73
Section 1005. Limitations on Dividends and Other Payments on Capital
Stock.................................................... 73
Section 1006. Limitations on Conduct of Capital and Other
Limitations.............................................. 74
Section 1007. Stock Exchange Listing................................... 75
ARTICLE ELEVEN
Redemption of Debentures
Section 1101. Applicability of Article................................. 76
Section 1102. Election to Redeem; Notice to Trustee.................... 76
Section 1103. Selection by Trustee of Debentures to Be
Redeemed................................................. 76
Section 1104. Notice of Redemption..................................... 77
Section 1105. Deposit of Redemption Price.............................. 78
Section 1106. Debentures Payable on Redemption Date.................... 78
Section 1107. Debentures Redeemed in Part.............................. 78
ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or
Covenant Defeasance...................................... 79
Section 1202. Defeasance and Discharge................................. 79
Section 1203. Covenant Defeasance...................................... 80
Section 1204. Conditions to Defeasance or Covenant
Defeasance............................................... 80
Section 1205. Deposited Money and U.S. Government Obligations to be
Held In Trust; Other Miscellaneous Provisions............ 83
Section 1206. Reinstatement............................................ 84
ARTICLE THIRTEEN
Sinking Funds
Section 1301. Applicability of Article................................. 84
Section 1302. Satisfaction of Sinking Fund Payments
with Debentures.......................................... 85
Section 1303. Redemption of Debentures for Sinking Fund................ 85
ARTICLE FOURTEEN
Subordination of Debentures
Section 1401. Debentures Subordinate to Senior Debt.................... 85
Section 1402. Payment Over of Proceeds Upon Dissolution,
Etc...................................................... 86
Section 1403. Prior Payment to Senior Debt Upon
Acceleration of Debentures............................... 88
Section 1404. No Payment When Senior Debt in Default................... 88
Section 1405. Payment Permitted If No Default.......................... 89
Section 1406. Subrogation to Rights of Holders of Senior
Debt..................................................... 89
Section 1407. Provisions Solely to Define Relative Rights.............. 90
Section 1408. Trustee to Effectuate Subordination...................... 91
Section 1409. No Waiver of Subordination Provisions.................... 91
Section 1410. Notice to Trustee........................................ 92
Section 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent.................................................... 93
Section 1412. Trustee Not Fiduciary For Holders of Senior
Debt..................................................... 93
Section 1413. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights...................................... 93
Section 1414. Article Applicable to Paying Agents...................... 93
Section 1415. Defeasance of This Article Fourteen...................... 94
ARTICLE FIFTEEN
Miscellaneous
Section 1501. Assignment; Binding Effect.................................. 94
Section 1502. Third Party Beneficiaries................................... 94
Section 1503. Set-off..................................................... 95
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of , 1994, between AETNA LIFE AND
CASUALTY COMPANY, a Connecticut insurance corporation (herein called the
"Company"), having its principal office at 151 Farmington Avenue, Hartford,
Connecticut 06156, and THE FIRST NATIONAL BANK OF CHICAGO, a national
association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Debentures"), to
be issued in one or more series to evidence its indebtedness resulting from
the loans to be made to the Company of the proceeds from the issuance from
time to time by Aetna Capital L.L.C., a Delaware limited liability company
("Capital"), of preferred limited liability company interests in Capital (the
"Preferred Securities"), in one or more series, and common limited liability
company interests in Capital (the "Common Securities") and related capital
contributions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures or of series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or the Securities Act of 1933, as amended,
either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" when used with respect to the Preferred
Securities of any series means any additional amounts that Capital is required
to pay as dividends to holders of the Preferred Securities of such series
pursuant to the Written Action establishing the Preferred Securities of such
series in the event that Capital is required by law to withhold or deduct for
or on account of any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed or levied upon or as a result
of payments by Capital in respect of the Preferred Securities of such series
by or on behalf of the United States of America, any state thereof or any
other jurisdiction through which or from which such payment is made, or any
authority therein or thereof having power to tax.
"Additional Interest" has the meaning specified in Section
311.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Debentures of one or more series.
"Board of Directors" means either (i) the board of directors
of the Company, the executive committee of such board of directors or any
other duly authorized committee of directors and/or officers appointed by such
board of directors or executive committee, or (ii) one or more duly authorized
officers of the Company to whom the board of directors of the Company or a
committee thereof has delegated the authority to act with respect to the
matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution
certified by the Corporate Secretary or an Assistant Corporate Secretary of
the Company to have been duly adopted by the Board of Directors or a committee
thereof and to be in full force and effect on the date of such certification
or (ii) a certificate signed by the authorized officer or officers of the
Company to whom the board of directors of the Company or a committee thereof
has delegated its authority (as described in the definition of Board of
Directors), and in each case, delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in The
City of New York are authorized or required by law or executive order to
close.
"Capital" means the Person named as "Capital" in the first
recital of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Capital" shall mean such successor Person.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Security" has the meaning stated in the first
recital of this Indenture.
"Common Stock" means the Company's common capital stock,
without par value.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President, a Group Executive
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Corporate
Secretary or an Assistant Corporate Secretary or any other individual
authorized by the Board of Directors for such purpose, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the
Trustee located at 1 North State Street, 9th Floor, Chicago, Illinois 60602 at
which at any particular time its corporate trust business shall be
administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1203.
"Debenture" has the meaning stated in the first recital of
this Indenture and more particularly means the Debentures of any series,
issued from time to time, by the Company pursuant to this Indenture.
"Debenture Register" and "Debenture Registrar" have the
respective meanings specified in Section 305.
"Debt" means (without duplication and without regard to any
portion of principal amount that has not accrued and to any interest component
thereof (whether accrued or imputed) that is not due and payable) with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) every obligation of such Person for
money borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii)
every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business),
(v) every capital lease obligation of such Person and (vi) every obligation of
the type referred to in clauses (i) through (v) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable, directly or indirectly, as obligor
or otherwise.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means, with respect to Debentures of any series
issuable in whole or in part in the form of one or more Global Debentures, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Debentures as contemplated by Section 301.
"Event of Default" has the meaning set forth in Section 501
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Debenture" means any Debenture
which provides for interest thereon at a periodic rate that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person (including
the Company), and periodic adjustment of the interest rate borne by a Floating
or Adjustable Rate Debenture.
"Global Debenture" means a Debenture that evidences all or
part of the Debentures of any series and is authenticated and delivered to,
and registered in the name of, the Depositary for such Debentures or a nominee
thereof.
"Guarantee" means the Payment and Guarantee Agreement
executed and delivered by the Company for the benefit of the holders from time
to time of the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Debenture is
registered in the Debenture Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Debentures established as
contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Debenture, means the Stated Maturity of an instalment of interest on such
Debenture.
"Junior Subordinated Payment" has the meaning specified in
Section 1402.
"L.L.C. Agreement" means the Amended and Restated Limited
Liability Company Agreement of Capital dated as of , 1994 by and among
the members of Capital, as amended from time to time.
"Managing Members" means the Company and Aetna Capital
Holdings, Inc., in their capacity as the members of Capital that hold all of
Capital's outstanding Common Securities.
"Maturity", when used with respect to any Debenture, means
the date on which the principal of such Debenture or an instalment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(3).
"Officers' Certificate" means a certificate signed by (i)
any two of the following individuals: the Chairman, a Vice Chairman, the
President, a Group Executive or a Vice President, or (ii) by one of the
foregoing individuals and by any other Vice President, the Treasurer, an
Assistant Treasurer, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board of
Directors for such purpose, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Outstanding", when used with respect to Debentures, means,
as of the date of determination, all Debentures theretofore authenticated and
delivered under this Indenture, except:
(i) Debentures theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Debentures; provided that, if such Debentures are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Debentures as to which Defeasance has been effected
pursuant to Section 1202; and
(iv) Debentures which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Debentures have been
authenticated and delivered pursuant to this Indenture, other than
any such Debentures in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Debentures are held by a bona fide purchaser in whose hands such
Debentures are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures
owned by the Company or any other obligor upon the Debentures or any
Subsidiary of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debentures which the Trustee knows
to be so owned shall be so disregarded. Debentures so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not the Company or any
other obligor upon the Debentures or any Subsidiary of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Debentures on behalf of
the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debentures
of any series, means the place or places where the principal of and any
premium and interest on the Debentures of that series are payable as specified
as contemplated by Section 301.
"Predecessor Debenture" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"Preferred Security" has the meaning stated in the first
recital of this Indenture.
"Proceeding" has the meaning specified in Section 1402.
"Redemption Date", when used with respect to any Debenture
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Debenture
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Debentures of any series means the date specified
for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
"Security Exchange" when used with respect to the Debentures
of any series, means an exchange by Capital of Debentures of such series for
Preferred Securities of the related series pursuant to the Written Action
establishing the Preferred Securities of such series.
"Senior Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Company to
the extent that such claim for post-petition interest is allowed in such
proceeding), on Debt of the Company, whether incurred on or prior to the date
of the Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right of payment to the
Debentures or to other Debt which is pari passu with, or subordinated to the
Debentures or to other securities of the Company which are junior to the
Debentures; provided, however, that Senior Debt shall not be deemed to include
the Debentures.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debenture
or any instalment of principal thereof or interest thereon, means the date
specified in such Debenture as the fixed date on which the principal of such
Debenture or such instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the voting
power of which is controlled, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting power" means the
power to vote for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Debentures of any series shall mean the Trustee with respect to
Debentures of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1204.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
"Written Action" when used with respect to the Preferred
Securities of any series, means a written action of the Managing Members
pursuant to the L.L.C. Agreement, establishing the terms of the Preferred
Securities of such series.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, such individual has made such examination or
investigation as is necessary to enable such individual to express
an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which its certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate, opinion or representation by an accountant or
firm of accountants in the employ of the Company, unless such officer or
counsel, as the case may be, knows, or in the exercise of reasonable care
should know, that the certificate, opinion or representation with respect to
such accounting matters upon which its certificate, statement or opinion may
be based is erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) 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 proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution
thereof. Where such execution is by a signer acting in a capacity other than
such signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Debentures of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to
be given or taken by Holders of Outstanding Debentures of such series. If not
set by the Company prior to the first solicitation of a Holder of Debentures
of such series made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be. With regard to any record
date for action to be taken by the Holders of one or more series of
Debentures, only the Holders of Debentures of such series on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Debentures shall be proved by the
Debenture Register or by a certificate of the Debenture Registrar.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every Debenture 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 Debenture.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Debenture may do so with regard to all or any part of the principal amount of
such Debenture or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Steven Wagner, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument, Attention: Senior Vice President - Finance, or at any
other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at its address as it appears in the
Debenture Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice;
provided, however, that the Company or the Trustee, upon a good faith
determination that mailing is in the circumstances impractical, may give such
notice by any other method which, in the reasonable belief of the Company or,
in the case of the Trustee, of the Company and the Trustee, is likely to be
received by the Holders. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Debentures
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders and, to the extent specifically set forth
herein, the holders of Senior Debt and Preferred Securities, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Debentures shall be governed by and
construed in accordance with the laws of the State of New York, but without
regard to principles of conflicts of laws.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Debentures
(other than a provision of the Debentures of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made on such date, but
may be made on the next succeeding Business Day (and no interest shall accrue
with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be), except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such Interest Payment Date or
Redemption Date, or at the Stated Maturity, as the case may be.
Section 114. Personal Immunity from Liability for Incorporators,
Stockholders, Etc.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Debenture, or for any claim
based thereon, or otherwise in respect of any Debenture, or based on or in
respect of this Indenture or any indenture supplemental hereto, against any
incorporator, or against any past, present or future stockholder, director or
officer, as such, of the Company or of any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being expressly
waived and released as a condition of, and as consideration for, the execution
of this Indenture and the issue of the Debentures.
ARTICLE TWO
Debenture Form
Section 201. Forms Generally.
The Debentures of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistent herewith, be
determined by the officers executing such Debentures, as evidenced by their
execution of the Debentures. If the form of Debentures of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Debentures.
The definitive Debentures shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debentures, as evidenced by their
execution of such Debentures.
Section 202. Form of Face of Debenture.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
AETNA LIFE AND CASUALTY COMPANY
No. $
AETNA LIFE AND CASUALTY COMPANY, a Connecticut insurance
corporation (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received,
hereby promises to pay to ,
or registered assigns, the principal sum of
Dollars on , and to pay interest thereon [if the Security is to bear
interest at a fixed rate, insert -- the rate of ....% per annum [if the
Security is a Floating or Adjustable Rate Security, insert -- a rate per
annum [computed-determined] in accordance with the [insert defined name of
Floating or Adjustable Rate Provision] set forth below] plus Additional
Interest, if any, accruing from or from the most recent Interest Payment
Date to which interest has been paid or duly provided for and (to the
extent that the payment of such interest shall be legally enforceable) at
the rate of % per annum on any overdue principal and premium and on any
overdue instalment of interest or Additional Interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose
name this Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the or (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Debentures of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
The indebtedness evidenced by this Debenture is, to the
extent provided in the Indenture, subordinate and subject in right of payment
to the prior payment in full of all Senior Debt, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each Holder
of this Debenture, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
[If the Securities are Floating or Adjustable Rate
Securities with respect to which the principal of or any premium or interest
may be determined with reference to an index, insert the text of the Floating
or Adjustable Rate Provision.]
Payment of the principal of (and premium, if any) and
interest on this Debenture will be made at the office or agency of the Company
maintained for that purpose in , in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Debenture
Register. Notwithstanding the foregoing, so long as the Holder of this
Debenture is Capital, the payment of the principal of (and premium, if any)
and interest (including Additional Interest, if any) on this Debenture will be
made at such place and to such account as may be designated by Capital.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Debenture shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
AETNA LIFE AND CASUALTY
COMPANY
By______________________
Attest:
Section 203. Form of Reverse of Debenture.
This Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Debentures), issued and to be
issued in one or more series under an Indenture, dated as of , 1994
(herein called the "Indenture"), between the Company and The First National
Bank of Chicago, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Debentures and, to the
extent specifically set forth in the Indenture, the holders of Senior Debt and
Preferred Securities, and of the terms upon which the Debentures are, and are
to be, authenticated and delivered. This Debenture is one of the series
designated on the face hereof, limited in aggregate principal amount
to $ .
[If the Debentures are subject to redemption, insert the
terms upon which such Debentures may be redeemed.]
[If applicable, insert the following: In the event of
redemption of this Debenture in part only, a new Debenture or Debentures of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time
of (1) the entire indebtedness of this Debenture or (2) certain restrictive
covenants and Events of Default with respect to this Debenture, in each case
upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Debentures of this
series shall occur and be continuing, the principal of the Debentures of this
series and accrued interest thereon (including Additional Interest, if any)
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debentures of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Debentures at the time Outstanding of each
series to be affected (and, prior to a Security Exchange with respect to the
Debentures of any series affected thereby, the consent of the holders of not
less than a majority in stated liquidation preference of the Preferred
Securities of the related series). The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Debentures of each series at the time Outstanding, on behalf of the Holders of
all Debentures of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences (except that prior to a Security Exchange with respect to
the Debentures of such series, any such waiver will also require the consent
of the holders of specified percentages of the stated liquidation preference
of the Preferred Securities of the related series). Any such consent or
waiver by the Holder of this Debenture shall be conclusive and binding upon
such Holder and upon all future Holders of this Debenture and of any Debenture
issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Debenture.
Subject to Section 1503 of the Indenture, no reference
herein to the Indenture (other than such Section) and no provision of this
Debenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and
interest on this Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Debenture is registerable
in the Debenture Register, upon surrender of this Debenture for registration
of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Debenture are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees; provided that prior to a Security
Exchange with respect to the Debentures of this series, the Debentures of this
series may not be transferred without the written consent of the Company.
The Debentures of this series are issuable only in
registered form without coupons in denominations of $25.00 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Debentures of this series are exchangeable for
a like aggregate principal amount of Debentures of this series and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Debenture is registered as the
owner hereof for all purposes, whether or not this Debenture is overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of
(and premium, if any) or interest (including Additional Interest, if any) on
this Debenture, or for any claim based hereon, or otherwise in respect hereof,
or based on or in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Debenture which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Debentures.
Every Global Debenture authenticated and delivered hereunder
shall bear a legend in substantially the following form or such other legends
as may be required:
This Debenture is a Global Debenture within the meaning of the
Indenture hereinafter referred to and is registered in the name of
a Depositary or a nominee thereof. This Debenture may not be
transferred to, or registered or exchanged for Debentures
registered in the name of, any Person other than the Depositary or
a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every
Debenture authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this Debenture
shall be a Global Debenture subject to the foregoing, except in
such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Debentures of the series designated
therein referred to in the within-mentioned Indenture.
.............................,
As Trustee
By...........................
Authorized Officer
ARTICLE THREE
The Debentures
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution or established in
one or more indentures supplemental hereto, prior to the issuance of
Debentures of any series,
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from Debentures of any
other series);
(2) any limit upon the aggregate principal amount of the
Debentures of the series which may be authenticated and delivered
under this Indenture (except for Debentures authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Debentures of the series pursuant to Sections
304, 305, 306, 906 or 1107 and except for any Debentures which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Debenture of the
series shall be payable, if other than the Person in whose name
that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date for
such interest;
(4) the date or dates on which the principal of the
Debentures of the series is payable;
(5) the rate or rates at which the Debentures of the series
shall bear interest, if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be determined, the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which any such interest shall be payable and the
Regular Record Date for any interest payable on any Interest
Payment Date;
(6) the place or places where the principal of and any
premium and interest on Debentures of the series shall be payable;
(7) the period or periods within which, the price or prices
at which (including premium, if any) and the terms and conditions
upon which Debentures of the series may be redeemed or prepaid, in
whole or in part, at the option of the Company pursuant to a
sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem or
purchase Debentures of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and
the terms and conditions upon which Debentures of the series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $25.00 and any integral
multiple thereof, the denominations in which Debentures of the
series shall be issuable;
(10) the ability of the Company, if any, to reborrow the
proceeds from any redemption or repayment of the Debentures of
that series or to exchange any Debentures of that series for
Debentures of a different series;
(11) the ability of the Company, if any, to extend the
interest payment period for the Debentures of the series;
(12) if the amount of payments of principal of or any premium
or interest on any Debentures of the series may be determined with
reference to one or more indices, the manner in which such amounts
shall be determined;
(13) if and as applicable, that the Debentures of the series
shall be issuable in whole or in part in the form of one or more
Global Debentures and, in such case, the Depositary or
Depositaries for such Global Debenture or Global Debentures and
any circumstance other than those set forth in Section 305 in
which any such Global Debenture may be transferred to, and
registered and exchanged for Debentures registered in the name
of, a Person other than the Depositary for such Global
Debenture or a nominee thereof and in which any such transfer
may be registered;
(14) any other event or events of default applicable with
respect to the Debentures of the series in addition to those
provided in Section 501;
(15) any other covenant or warranty included for the benefit
of Debentures of the series in addition to (and not inconsistent
with) those included in this Indenture for the benefit of
Debentures of all series, or any other covenant or warranty
included for the benefit of Debentures of the series in lieu of
any covenant or warranty included in this Indenture for the
benefit of Debentures of all series, or any provision that any
covenant or warranty included in this Indenture for the benefit of
Debentures of all series shall not be for the benefit of
Debentures of the series, or any combination of such covenants,
warranties or provisions;
(16) any restriction or condition on the transferability of
the Debentures of the series;
(17) any authenticating or paying agents, registrars or
any other agents with respect to the Debentures of the series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of such action shall be delivered
to the Trustee.
Section 302. Denominations.
The Debentures of each series shall be issuable in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Debentures of any series, the Debentures of such series shall
be issuable in denominations of $25.00 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Debentures shall be executed on behalf of the Company by
its Chairman, a Vice Chairman, its President, any Group Executive, any Vice
President, its Treasurer or Assistant Treasurer, under its corporate seal
reproduced thereon attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries. The signature of any of these officers on the
Debentures may be manual or facsimile.
The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on
the Debentures. Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Debentures or did not hold such offices at the date of such Debentures. Minor
typographical and other minor errors in the text of any Debenture or minor
defects in the seal or facsimile signature on any Debenture shall not affect
the validity or enforceability of such Debenture if it has been duly
authenticated and delivered by the Trustee.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Debentures, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Debentures. If the form or terms of the Debentures of the series have
been established in or pursuant to one or more Board Resolutions as permitted
by Sections 201 and 301, in authenticating such Debentures, and accepting the
additional responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Debentures has been established by
or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions
of this Indenture;
(b) if the terms of such Debentures have been established
by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Debentures, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights generally or the rights of creditors of
insurance companies generally and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Debentures under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or responsible officers of the Trustee shall
determine that such action would expose the Trustee to personal liability to
existing Holders of Debentures.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Debentures of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Debenture of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Debenture of such series to be issued.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debenture a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Debenture shall be conclusive evidence, and the only
evidence, that such Debenture has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Debenture shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Debenture to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture
such Debenture shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Debentures.
Pending the preparation of definitive Debentures of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Debentures which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Debentures in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Debentures may determine, as evidenced by their execution of
such Debentures.
If temporary Debentures of any series are issued, the
Company will cause definitive Debentures of that series to be prepared without
unreasonable delay. After the preparation of definitive Debentures of such
series, the temporary Debentures of such series shall be exchangeable for
definitive Debentures of such series upon surrender of the temporary
Debentures of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Debentures of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Debentures of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debentures of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it or the Trustee may prescribe, the
Company shall provide for the registration of Debentures and of transfers of
Debentures. The Trustee is hereby appointed "Debenture Registrar" for the
purpose of registering Debentures and transfers of Debentures as herein
provided.
Upon surrender for registration of transfer of any Debenture
of any series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Debentures of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor; provided that prior to a Security
Exchange with respect to the Debentures of such series, the Debentures of such
series may not be transferred without the written consent of the Company.
At the option of the Holder, Debentures of any series may be
exchanged for other Debentures of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Debentures to be exchanged at such office or agency.
Whenever any Debentures are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Debentures which
the Holder making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or
exchange of Debentures shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debentures surrendered upon such registration of transfer or
exchange.
Every Debenture presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Debenture Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debentures, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Debentures, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
Unless otherwise required by the rules of any stock exchange
on which the Debentures are listed or of any quotation system through which
the Debentures are traded, neither the Company nor the Trustee shall be
required (i) to issue, register the transfer of or exchange Debentures of any
series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Debentures of that series
selected for redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange
any Debenture so selected for redemption in whole or in part, except the
unredeemed portion of any Debenture being redeemed in part.
Notwithstanding any other provision in this Indenture, no
Global Debenture may be transferred to, or registered or exchanged for
Debentures registered in the name of, any Person other than the Depositary for
such Global Debenture or any nominee thereof, and no such transfer may be
registered, unless (1) such Depositary (A) notifies the Company and the
Trustee that it is unwilling or unable to continue as Depositary for such
Global Debenture or (B) ceases to be a clearing agency registered under the
Exchange Act, (2) the Company executes and delivers to the Trustee a Company
Order that such Global Debenture shall be so transferable, registrable and
exchangeable, and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the Debentures
evidenced by such Global Debenture or (4) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 301. Notwithstanding any other provision in this Indenture, a
Global Debenture to which the restriction set forth in the preceding sentence
shall have ceased to apply may be transferred only to, and may be registered
and exchanged for Debentures registered only in the name or names of, such
Person or Persons as the Depositary for such Global Debenture shall have
directed and no transfer thereof other than such a transfer may be registered.
Every Debenture authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Debenture to which the restriction set forth in the first sentence of the
preceding paragraph shall apply, whether pursuant to this Section, Section
304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Debenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Debentures.
If there shall be delivered to the Company and the Trustee
(i) a mutilated Debenture or (ii) evidence to their satisfaction of the
destruction, loss or theft of any Debenture and in either case such security
or indemnity as may be required by either of them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such mutilated, destroyed, lost or stolen Debenture, a
new Debenture of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section,
the Company or the Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Debenture of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debenture shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debenture shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debentures of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debentures.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Debentures, interest on any Debenture which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Debenture (or one or more
Predecessor Debentures) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Debenture of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures of such
series (or their respective Predecessor Debentures) are registered
at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Debenture
of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 15 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Debentures of such series at
its address as it appears in the Debenture Register, not less than
10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Debentures of such series
(or their respective Predecessor Debentures) are registered at the
close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Debentures of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Debentures may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Debenture is registered as the owner
of such Debenture for the purpose of receiving payment of principal of and any
premium and (subject to Section 307) any interest on such Debenture and for
all other purposes whatsoever, whether or not such Debenture be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 309. Cancellation.
All Debentures surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Debentures
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Debentures
previously authenticated hereunder which the Company has not issued and sold,
and all Debentures so delivered shall be promptly cancelled by the Trustee.
No Debentures shall be authenticated in lieu of or in exchange for any
Debentures cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Debentures held by the Trustee
shall be disposed of as directed by a Company Order. Acquisition by the
Company of any Debenture shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debenture unless and until the same is
delivered to the Trustee for cancellation.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Debentures of any series, interest on the Debentures of each series shall
be computed on the basis of a 360-day year of twelve 30-day months and, for
any period shorter than a full monthly period, shall be computed on the basis
of the actual number of days elapsed in such period.
Section 311. Additional Interest.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Debentures, if at any time prior to a Security
Exchange with respect to such series of Debentures, (i) Capital shall be
required to pay any Additional Amounts with respect to the related series of
Preferred Securities or (ii) Capital shall be required to pay, with respect to
its income derived from the interest payments on such series of Debentures,
any amounts for or on account of any taxes, duties, assessments or governmental
charges of whatever nature imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as interest such
additional amounts ("Additional Interest") as may be necessary in order that
the net amounts received and retained by Capital after paying such Additional
Amounts or after the payment of such taxes, duties, assessments or
governmental charges shall result in Capital's having such funds as it would
have had in the absence of the payment of such taxes, duties, assessments or
governmental charges.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer
or exchange of Debentures of a series herein expressly provided for) with
respect to Debentures of any series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to a series, when
(1) either
(A) all Debentures of such series theretofore authenticated
and delivered (other than (i) Debentures which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Debentures of such series for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation;
or
(B) all such Debentures of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee in trust for
the purpose (A) money in an amount, or (B) U.S. Government
Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof,
sufficient to pay and discharge the entire indebtedness on such
Debentures of such series not theretofore delivered to the Trustee
for cancellation, for principal of (and premium, if any) and
interest to the date of such deposit (in the case of Debentures of
such series which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to such
series have been complied with.
In the event there are Debentures of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested
to do so with respect to Debentures of a particular series as to which it is
Trustee and if the other conditions thereto are met. In the event that there
are two or more Trustees hereunder, then the effectiveness of any such
instrument shall be conditioned upon receipt of such instruments from all
Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a particular series, the obligations of the Company
to the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive until there are no Debentures Outstanding with respect to a
particular series and the obligations of the Company and the Trustee with
respect to all other series of Debentures shall survive.
Section 402. Application of Trust Fund.
Subject to provisions of the last paragraph of Section 1003,
all amounts deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Debentures
and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such funds have been deposited with the
Trustee. Money deposited pursuant to this section not in violation of this
Indenture shall not be subject to claims of the holders of Senior Debt under
Article Fourteen.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default" whenever used with respect to Debentures
of a series means any one of the following events and such other events as may
be established with respect to the Debentures of such series as contemplated
by Section 301 hereof (whether or not it shall be occasioned by the provisions
of Article Fourteen):
(1) Default in the payment of any instalment of interest
(including any Additional Interest) upon any Debentures issued
under this Indenture as and when the same shall become due and
payable, and continuance of such default for a period of 10 days,
in the event such Default occurs prior to a Security Exchange with
respect to such Debentures, and 30 days, in the event such Default
occurs on or after such a Security Exchange; provided that a valid
extension of the interest payment period by the Company for any
Debentures shall not constitute a default in the payment of
interest for this purpose; or
(2) Default in the payment of the principal of or premium,
if any, on any Debentures issued under this Indenture as and when
the same shall become due and payable either at maturity, upon
redemption, by declaration or otherwise; or
(3) Failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Company contained in this Indenture
for the benefit of the holders of Debentures of such series and
written notice of such failure, stating that such notice is a
"Notice of Default" hereunder, and requiring the Company to remedy
the same, shall have been given by registered or certified mail,
return receipt requested, to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in
aggregate principal amount of the Outstanding Debentures of such
series or, prior to a Security Exchange with respect to Debentures
of such series, 25% in aggregate stated liquidation preference of
the related series of Preferred Stock and such failure shall have
continued unremedied for a period of 60 days, in the event such
Default occurs prior to a Security Exchange with respect to the
Debentures of such series, and 90 days, in the event such Default
occurs after such a Security Exchange after the date of the
Company's receipt of such Notice of Default; or
(4) A decree or order by a court having jurisdiction in
the premises shall have been entered adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
the Company under any applicable Federal or State bankruptcy or
similar law, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or a decree or
order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, trustee, assignee,
sequestrator or similar official in bankruptcy or insolvency of
the Company or of all or substantially all of its property, or for
the winding up or liquidation of its affairs, shall have been
entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(5) The Company shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization, arrangement, adjustment
or composition under any applicable Federal or State bankruptcy or
similar law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver, liquidator,
trustee, assignee, sequestrator or similar official in bankruptcy
or insolvency of the Company or of all or substantially all of its
property, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts generally as they become due and its willingness to be
adjudged a bankrupt, or corporate action shall be taken by the
Company in furtherance of any of the aforesaid purposes.
After a Security Exchange with respect to the Debentures of
any series, upon receipt by the Trustee of any Notice of Default pursuant to
this Section 501 with respect to the Debentures of such series, a record date
shall automatically and without any other action by any Person be set for the
purpose of determining the holders of Outstanding Debentures of such series
entitled to join in such Notice of Default, which record date shall be the
close of business on the day the Trustee receives such Notice of Default. The
Holders of Outstanding Debentures of such series on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to join in
such Notice of Default, whether or not such Holders remain Holders after such
record date; provided that, unless such Notice of Default shall have become
effective by virtue of Holders of at least 25% in principal amount of
Outstanding Debentures of such series on such record date (or their duly
appointed agents) having joined therein on or prior to the 90th day after such
record date, such Notice of Default shall automatically and without any action
by any Person be cancelled and of no further effect. Nothing in this
paragraph shall prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a Notice of
Default contrary to or different from, or, after the expiration of such
period, identical to, a Notice of Default that has been cancelled pursuant to
the proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
Section 502. Acceleration of Maturity.
(a) If an Event of Default with respect to the Debentures
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Debentures of such series may declare the principal amount
of all of the Debentures of that series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration such principal amount and all accrued interest
thereon (including any Additional Interest and any interest subject to an
interest extension election for such Debentures) shall become immediately due
and payable.
At any time after such a declaration of acceleration with
respect to Debentures of any series has been made and before a judgment or
decree for payment of the money due has been obtained by Capital or, after a
Security Exchange with respect to the Debentures of such series, the Trustee
as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Debentures of that series (with the
consent of the holders of a majority in stated liquidation preference of the
Preferred Securities of the related series in the event such Preferred
Securities have not been exchanged for such Debentures), by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest (including any Additional
Interest) on all Debentures of that series,
(B) the principal of (and premium, if any, on) any
Debentures of that series which have become due otherwise
than by such declaration of acceleration, any interest
thereon at the rate or rates prescribed therefor in such
Debentures and any Additional Interest,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Debentures, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee;
and
(2) all Events of Default with respect to Debentures of
that series, other than the non-payment of the principal of and
interest, if any, on the Debentures of that series which have
become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
After a Security Exchange with respect to the Debentures of
any series, upon receipt by the Trustee of any declaration of acceleration, or
any rescission and annulment of any such declaration, pursuant to this Section
502 with respect to Debentures of such series, a record date shall
automatically and without any other action by any Person be set for the
purpose of determining the Holders of Outstanding Debentures of such series
entitled to join in such declaration, or rescission and annulment, as the case
may be, which record date shall be the close of business on the day the
Trustee receives such declaration, or rescission and annulment, as the case
may be. The Holders of Outstanding Debentures of such series on such record
date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such declaration, or rescission and annulment, as the case
may be, whether or not such Holders remain Holders after such record date;
provided that, unless such declaration, or rescission and annulment, as the
case may be, shall have become effective by virtue of Holders of at least 25%,
in the case of any declaration of acceleration, or a majority, in the case of
any rescission or annulment, in principal amount of Outstanding Debentures of
such series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such declaration,
or rescission and annulment, as the case may be, shall automatically and
without any action by any Person be cancelled and of no further effect.
Nothing in this paragraph shall prevent a Holder (or a duly appointed agent
thereof) from giving, before or after the expiration of such 90-day period, a
declaration of acceleration, or a rescission and annulment of any such
declaration, contrary to or different from, or, after the expiration of such
period, identical to, a declaration, or rescission and annulment, as the case
may be, that has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
(b) If, prior to a Security Exchange with respect to the
Debentures of any series, an Event of Default with respect to the Debentures
of such series of a character specified in clause (1) or (2) of Section 501
shall have occurred and be continuing and Capital shall have failed to pay any
dividends on the Preferred Securities of the related series on any dividend
payment date (other than as a result of any valid extension of any interest
payment period by the Company for the Debentures of such series) or to pay any
portion of the redemption price of Preferred Securities of such series called
for redemption, then any holder of Preferred Securities of such series may
enforce directly against the Company Capital's right hereunder to receive
payments of principal and interest on the Debentures of such series, but only
in an amount sufficient to enable Capital to pay such dividends or redemption
price.
(c) The Company expressly acknowledges that under the
circumstances set forth in the L.L.C Agreement, the holders of Preferred
Securities have the right to appoint a trustee if an Event of Default has
occurred and is continuing, which trustee shall be authorized to exercise
Capital's rights under this Indenture and the Company agrees to cooperate with
such trustee; provided that any trustee so appointed shall vacate office
immediately in accordance with the L.L.C. Agreement if all Events of Default
giving rise to such right of appointment have been cured by the Company.
In furtherance of the foregoing and without limiting the
powers of any trustee so appointed and for the avoidance of any doubt
concerning the powers of the trustee, the Company acknowledges that any
trustee, in its own name and as trustee of an express trust, may institute a
proceeding, including, without limitation, any suit in equity, an action at
law or other judicial or administrative proceeding, to enforce Capital's
rights directly against the Company to the same extent as Capital and on
behalf of Capital, and may prosecute such proceeding to judgment or final
decree, and enforce the same against the Company and collect, out of the
property, wherever situated, of Company the monies adjudged or decreed to be
payable in the manner provided by law.
(d) Except as provided in this Section 502, holders of any
series Preferred Securities shall have no rights to enforce any obligations of
the Company under this Indenture.
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if, after a Security Exchange
with respect to the Debentures of any series,
(1) default is made in the payment of any interest on any
Debenture of such series when such interest becomes due and payable
(except for a valid extension of any interest period pursuant to
the terms of the Debentures of such series) and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debenture of such series at the Maturity
thereof,
the Company will, upon written demand of the Trustee, pay to it, for the
benefit of the Holders of such Debentures, the whole amount then due and
payable on such Debentures for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Debentures, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel except such
costs and expenses, as are a result of negligence or bad faith on the part of
the Trustee. Until such demand is made by the Trustee, the Company may pay
the principal of and premium, if any, and interest, if any, on the Debentures
of such series to the Holders thereof, whether or not the Debentures of such
series are overdue.
If, after a Security Exchange with respect to the Debentures
of any series, an Event of Default with respect to Debentures of such series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debentures of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Debentures), its property or its creditors
after a Security Exchange with respect to the Debentures of any series, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders of Debentures of such series and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
of Debentures 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 Debentures of such series, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607 except such costs and expenses, as are a result of
negligence or bad faith on the part of the Trustee.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, after a Security Exchange
with respect to Debentures of any series on behalf of the Holders of
Debentures of such series, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of
Debentures.
All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the
possession of any of the Debentures or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
except such costs and expenses, as are a result of negligence or bad faith on
the part of the Trustee, be for the ratable benefit of the Holders of the
Debentures in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal or any premium or interest, upon
presentation of the Debentures and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Debentures in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debentures for
principal and any premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
Section 507. Limitation on Suits.
Prior to a Security Exchange with respect to the Debentures
of any series, Capital shall, with respect to the Debentures of such series,
have the right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder.
After a Security Exchange with respect to the Debentures of
any series, no Holder of any Debenture of that series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Debentures of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debentures of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory in form and substance to the
Trustee against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(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 Debentures of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Debenture shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Debenture on the Stated Maturity
or Maturities expressed in such Debenture (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debentures in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Debentures to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Subject to Section 507, every right
and remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
After a Security Exchange with respect to the Debentures of
any series, the Holders of a majority in principal amount of the Outstanding
Debentures of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debentures of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction with
respect to Debentures of any series, a record date shall be set for
determining the Holders of Outstanding Debentures of such series entitled to
join in such direction, which record date shall be the close of business on
the day the Trustee receives such direction. The Holders of Outstanding
Debentures of such series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in such direction,
whether or not such Holders remain Holders after such record date; provided
that, unless such direction shall have become effective by virtue of Holders
of at least a majority in principal amount of Outstanding Debentures of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such direction
shall automatically and without any action by any Person be cancelled and of
no further effect. Nothing in this paragraph shall prevent a Holder (or a
duly appointed agent thereof) from giving, before or after the expiration of
such 90-day period, a direction contrary to or different from, or, after the
expiration of such period, identical to, a direction that has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this paragraph.
Section 513. Waiver of Past Defaults.
Prior to a Security Exchange with respect to the Debentures
of any series, Capital may not waive any past default hereunder with respect
to such series and its consequences without the consent of the holders of not
less than a majority in stated liquidation preference of the Preferred
Securities of the related series; provided that Capital may not waive any
default (1) in the payment of the principal of or any premium or interest on
any Debenture or (2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified without the consent of the Holder of each
Outstanding Debenture of such series affected without, in each case, the
consent of each holder of Preferred Securities of such series.
After a Security Exchange with respect to the Debentures of
any series, the Holders of not less than a majority in principal amount of the
Outstanding Debentures of such series may on behalf of the Holders of all the
Debentures of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Debenture of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Debenture of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant
in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided that neither this Section nor
the Trust Indenture Act shall be deemed to authorize any court to require such
an undertaking or to make such an assessment in any suit instituted by the
Company.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Debentures of
any series, the Trustee shall give the Holders of Debentures of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 501(3) with respect to Debentures of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Debentures of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory in form and
substance to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) prior to the occurrence of an Event of Default and
after the remedy or waiver of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall upon
reasonable notice to the Company be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney at a time and place acceptable to the Company; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Debentures.
The recitals contained herein and in the Debentures, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Debentures. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Debentures or the proceeds thereof.
Section 605. May Hold Debentures.
The Trustee, any Authenticating Agent, any Paying Agent, any
Debenture Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debentures and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Debenture Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its written request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation, and reasonable expenses
and disbursements of its agents and outside counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties
hereunder.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided
by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $50,000,000 or is a
subsidiary of a corporation which shall be a Person that has a combined
capital and surplus of at least $50,000,000 and which unconditionally
guarantees the obligations of the Trustee hereunder. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Debentures of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debentures of such series.
(c) The Trustee may be removed at any time with respect to
the Debentures of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debentures of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Debenture for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Debenture for at least six months
may, on behalf of itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Debentures and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Debentures of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Debentures of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Debentures of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debentures of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debentures
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Debentures of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Debentures of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Debentures of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Debenture of such
series for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debentures of such
series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debentures of any series and
each appointment of a successor Trustee with respect to the Debentures of any
series to all Holders of Debentures of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Debentures of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Debentures, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debentures of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to
the Debentures of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer the rights, powers, trust and duties of the retiring
Trustee with respect to the Debentures of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debentures, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debentures of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Debentures of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Debentures of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Debentures
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Debentures so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debentures.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Debentures), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may with the consent of the Company appoint an
Authenticating Agent or Agents with respect to one or more series of
Debentures which shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant
to Section 306, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Debentures by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company
or the Trustee, as the case may be. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Debentures of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Debenture Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debentures of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Debentures of the series designated
therein referred to in the within-mentioned Indenture.
........................,
As Trustee
By......................,
As Authenticating Agent
By......................,
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders.
After a Security Exchange with respect to Debentures of any
series, the Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 10 days after each
Regular Record Date in each year, a list for such series of
Debentures, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Debentures of such
series as of the preceding Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Debenture Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Debenture Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Debentures, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. To the extent that any such report is required by the Trust
Indenture Act with respect to any 12 month period, such report shall cover the
12 month period ending July 15 and shall be transmitted by the next succeeding
September 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debentures are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Debentures are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person or sell its properties and assets as, or substantially as, an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or sell its properties and assets as, or
substantially as, an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the
Person which purchases the properties and assets of the Company
as, or substantially as, an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on all
the Debentures and the performance or observance of every covenant
of this Indenture on the part of the Company to be performed or
observed, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Person (if
other than the Company) formed by such consolidation or into which
the Company shall have been merged or by the corporation which
shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no
Event of Default shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, or sale and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have
been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale of the properties and assets of the
Company as, or substantially as, an entirety in accordance with Section 801,
the successor Person formed by such consolidation or into which the Company is
merged or to which such sale is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Debentures.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Debentures; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Debentures (and if such
covenants are to be for the benefit of less than all series of
Debentures, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Debentures in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Debentures in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Debentures,
including, without limitation, with respect to any of the
provisions set forth in Article Fourteen, provided that any such
addition, change or elimination (i) shall neither (A) apply to any
Debenture of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor (B) modify the rights of the Holder of any such
Debenture with respect to such provision or (ii) shall become
effective only when there is no such Debenture Outstanding; or
(6) to secure the Debentures of any series; or
(7) to establish the form or terms of Debentures of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Debentures of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not adversely affect the
interests of the Holders of Debentures of any series in any
material respect; or
(10) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
of principal amount of the Outstanding Debentures of each series affected by
such supplemental indenture (and, prior to a Security Exchange with respect to
the Debentures of such series, the consent of the holders of not less than a
majority in stated liquidation preference of the Preferred Securities of the
related series), by Act of said Holders (and, prior to such a Security
Exchange, by a written action of the holders of such Preferred Securities)
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Debentures of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debenture
affected thereby (and, prior to a Security Exchange with respect to the
Debentures of any series affected thereby, the consent of the holders of each
Preferred Security of the related series),
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Debenture, or reduce
the principal amount thereof or the rate of interest thereon
(including any change in the Floating or Adjustable Rate Provision
pursuant to which such rate is determined that would reduce such
rate for any period) or any premium payable upon the redemption
thereof, or change any Place of Payment where, or the coin or
currency in which, any Debenture or any premium or interest thereon
is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to
the subordination of the Debentures of any series in a manner
adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Debentures of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 907, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Debenture affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 907, or the
deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debentures, or which modifies the
rights of the Holders of Debentures of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debentures of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debentures theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Debentures to Supplemental Indentures.
Debentures of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debentures of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Debentures of such series.
Section 907. Waiver of Compliance by Holders.
Anything in this Indenture to the contrary notwithstanding,
any of the acts which the Company is required to do, or is prohibited from
doing, by any of the provisions of this Indenture may, to the extent that such
provisions might be changed or eliminated by a supplemental indenture pursuant
to Section 902 upon consent of Holders of not less than a majority in
aggregate principal amount of the then Outstanding Debentures of the series
affected (and, prior to a Security Exchange with respect to the Debentures of
such series, holders of at least a majority in stated liquidation preference
of the Preferred Securities of the related series), be omitted or done by the
Company, if there is obtained the prior consent or waiver of the Holders of at
least a majority in aggregate principal amount of the then Outstanding
Debentures of such series (and, prior to a Security Exchange with respect to
the Debentures of such series, holders of at least a majority in stated
liquidation preference of the Preferred Securities of the related series).
Section 908. Subordination Unimpaired.
No provision in any supplemental indenture that affects the
superior position of the holders of Senior Debt shall be effective against
holders of Senior Debt without the consent of any such affected holder.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debentures that it will duly and punctually pay or cause to be paid
the principal of and any premium and interest (including any Additional
Interest) on the Debentures of that series in accordance with the terms of the
Debentures and this Indenture.
Section 1002. Maintenance of Office or Agency.
After a Security Exchange with respect to the Debentures of
any series, so long as any Debentures are Outstanding, the Company will
maintain in each Place of Payment for the Debentures of that series an office
or agency where Debentures of that series may be presented or surrendered for
payment, where Debentures of that series may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon the Company
in respect of the Debentures of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Debentures of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Debentures of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Debentures Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debentures, it will, on or before each due date
of the principal of or any premium or interest on any of the Debentures of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and, after a Security Exchange with
respect to the Debentures of that series, will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Debentures, it will, prior to each due date of the principal
of or any premium or interest on any Debentures of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) after a Security Exchange with respect to the Debentures of that
series, the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Debentures other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent
and (ii) during the continuance of any default by the Company (or any other
obligor upon the Debentures of that series) in the making of any payment in
respect of the Debentures of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Debentures of that series.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Debenture of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debenture
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee within 120 days
after the end of each fiscal year of the Company ending after the date hereof,
a certificate signed by the Company's principal executive officer, principal
financial officer or principal accounting officer stating whether or not to the
best knowledge of the signer thereof the Company is in compliance with all
terms, conditions and covenants of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the signer
has obtained knowledge of any continuing default by the Company in the
performance, observation or fulfillment of any such term, condition or
covenant, specifying each such default and the nature thereof.
Section 1005. Limitations on Dividends and Other Payments on Capital
Stock.
Prior to a Security Exchange with respect to Debentures of
any series, the Company agrees for the benefit of the Holders of Debentures of
such series that it shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock or make any guarantee payments with respect to the
foregoing (other than (i) payments under the Guarantee, (ii) acquisitions of
shares of Common Stock in connection with the satisfaction by the Company of
its obligations under any employee benefit plans and (iii) redemptions of any
share purchase rights issued by the Company pursuant to the Company's Share
Purchase Rights Plan adopted on October 27, 1989, as amended from time to
time, or the declaration of a dividend of similar share purchase rights in the
future), if at such time the Company is in default with respect to its payment
obligations under the Guarantee or there shall have occurred an Event of
Default with respect to the Debentures of such series.
Section 1006. Limitations on Conduct of Capital and Other
Limitations.
Prior to a Security Exchange with respect to Debentures of
any series, the Company agrees for the benefit of the Holders of Debentures of
such series that it shall (i) not cause or permit any Common Securities of
Capital to be transferred, (ii) maintain direct or indirect ownership of all
outstanding securities of Capital other than (x) the Preferred Securities of
any series and (y) any other securities issued by Capital (other than the
Common Securities) so long as the issuance thereof to Persons other than the
Company or any of its Subsidiaries would not cause Capital to become an
"investment company" required to be registered under the Investment Company
Act of 1940, as amended, (iii) cause at least 21% of the total value of
Capital and at least 21% of all interests in the capital, income, gain, loss,
deduction and credit of Capital to be represented by Common Securities, (iv)
not voluntarily dissolve, wind up or liquidate Capital (other than in
connection with the exchange of all series of Preferred Securities outstanding
for the related series of Debentures) or either of the Managing Members, (v)
cause the Company and Aetna Capital Holdings, Inc. to remain the Managing
Members of Capital and timely perform all of their respective duties as
Managing Members of Capital (including the duty to declare and pay dividends
on the Preferred Securities), and (vi) use reasonable efforts to cause Capital
to remain a limited liability company and otherwise continue to be treated as
a partnership for U.S. federal income tax purposes; provided that the Company
may permit Capital, to consolidate or merge with or into or convey, transfer or
lease its assets substantially as an entirety to, a limited liability company
or limited partnership or trust organized as such under the laws of any state
of the United States of America or the District of Columbia, provided that:
(A) the holders of not less than 66 2/3% of the stated liquidation preference
of the outstanding Preferred Securities approves of such merger,
consolidation, conveyance, transfer or lease; or (B) (i) such successor entity
either (x) expressly assumes all of the obligations of Capital under the
Preferred Securities or (y) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities
(the "Successor Securities") so long as the Successor Securities rank, with
respect to participation in the profits or assets of the successor entity, at
least as high as the Preferred Securities rank with respect to participation
in the profits or assets of Capital, (ii) the Company expressly acknowledges
such successor entity as the holder of the Debentures relating to the
Preferred Securities, (iii) such merger, consolidation, conveyance, transfer
or lease does not cause the Preferred Securities or Successor Securities, if
any, to be delisted (or, in the case any Successor Securities, fail to be
listed) by any national securities exchange or other organization on which the
Preferred Securities are then listed, (iv) such merger, consolidation,
conveyance, transfer or lease does not cause the Preferred Securities or
Successor Securities, if any, to be downgraded by any "nationally recognized
statistical rating organization," as that term is defined by the Securities and
Exchange Commission for purposes of Rule 436(g)(2) under the Securities Act of
1933, as amended, (v) such merger, consolidation, conveyance, transfer or
lease does not adversely affect the powers, preferences and other special
rights of holders of Preferred Securities or Successor Securities, if any, in
any material respect and (vi) prior to such merger, consolidation, conveyance,
transfer or lease the Company has received an opinion of counsel (which
counsel is not an employee of the Company or Capital) to the effect that (w)
such merger, consolidation, conveyance, transfer or lease will not cause
Capital or such successor entity to become an "investment company" required to
be registered under the Investment Company Act of 1940, as amended, (x)
holders of outstanding Preferred Securities will not recognize any gain or
loss for federal income tax purposes as a result of the merger, consolidation,
conveyance, transfer or lease, (y) such successor entity will not be treated
as a corporation for federal income tax purposes and (z) such merger,
consolidation, conveyance, transfer or lease will not adversely affect the
limited liability of holders of Preferred Securities.
Section 1007. Stock Exchange Listing.
In the event of a Security Exchange with respect to
Debentures of any series, the Company will use its best efforts to have the
Debentures of such series listed on the same exchange as that on which the
Preferred Securities of the related series were listed immediately prior to
such Security Exchange.
ARTICLE ELEVEN
Redemption of Debentures
Section 1101. Applicability of Article.
Debentures of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Debentures of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
At any time after a Security Exchange with respect to
Debentures of any series, in case of any redemption at the election of the
Company of less than all the Debentures of such series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Debentures of such series to
be redeemed and, if applicable, of the tenor of the Debentures to be redeemed.
In the case of any redemption of Debentures prior to the expiration of any
restriction on such redemption provided in the terms of such Debentures or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Debentures to Be Redeemed.
At any time after a Security Exchange with respect to
Debentures of any series, if less than all the Debentures of such series are
to be redeemed (unless all of the Debentures of such series and of a specified
tenor are to be redeemed), the particular Debentures to be redeemed shall be
selected not more than 45 days prior to the Redemption Date by the Trustee,
from the Outstanding Debentures of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Debentures of that series or any integral
multiple thereof) of the principal amount of Debentures of such series of a
denomination larger than the minimum authorized denomination for Debentures of
that series. If less than all of the Debentures of such series and of a
specified tenor are to be redeemed, the particular Debentures to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee, from the Outstanding Debentures of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Debentures selected for redemption and, in the case of any Debentures
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debentures
shall relate, in the case of any Debentures redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debentures which has been
or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Debentures to be redeemed, at its address
appearing in the Debenture Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Debentures of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Debentures, the principal amounts) of
the particular Debentures to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Debentures to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
By 12:00 noon (New York time) on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest on, all the Debentures which are to be redeemed on that
date.
Section 1106. Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Debentures so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Debentures shall cease to bear interest. Upon
surrender of any such Debenture for redemption in accordance with said notice,
such Debenture shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, instalments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Debentures, or one or more Predecessor Debentures,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debenture.
Section 1107. Debentures Redeemed in Part.
Prior to a Security Exchange with respect to the Debentures
of any series, any Debenture of such series which is to be redeemed only in
part shall be surrendered at the place designated by the Company for such
purpose, and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Debenture without service charge, a new
Debenture or Debentures of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debenture so surrendered.
After a Security Exchange with respect to the Debentures of
any series, any Debenture of such series which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Debenture without service charge, a new Debenture or Debentures
of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Debenture so
surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
Section 1201. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may elect, at any time, to have either Section
1202 or Section 1203 applied to the Outstanding Debentures of any series, upon
compliance with the conditions set forth below in this Article Twelve.
Section 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in
Section 1201 to have this Section 1202 applied to the Outstanding Debentures
of any series, the Company shall be deemed to have been discharged from its
obligations, and the provisions of Article Fourteen shall cease to be
effective, with respect to the Outstanding Debentures of such series as
provided in this Section on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding
Debentures of such series and to have satisfied all its other obligations
under the Debentures of such series and this Indenture insofar as the
Debentures of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Debentures of such series to receive,
solely from the trust fund described in Section 1204 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Debentures of such series when payments are due, (2) the
Company's obligations with respect to the Debentures of such series under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, including, without limitation, its
rights under Section 607 and (4) this Article Twelve. Subject to compliance
with this Article Twelve, the Company may exercise its option provided in
Section 1201 to have this Section 1202 applied to the Outstanding Debentures
of any series notwithstanding the prior exercise of its option provided in
Section 1201 to have Section 1203 applied to the Outstanding Debentures of
such series.
Section 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1201 to have this Section 1203 applied to the outstanding Debentures
of any series, (1) the Company shall be released from its obligations under
Section 1005 and Section 801 and (2) the occurrence of any event specified in
Section 501(3) (with respect to Section 801 and Section 1005) shall be deemed
not to be or result in an Event of Default, and (3) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to the
Outstanding Debentures of such series as provided in this Section on and after
the date the conditions set forth in Section 1204 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 501(3)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and the Debentures of such series shall be unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
either Section 1202 or Section 1203 to the Outstanding Debentures of any
series:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 609 and agrees
to comply with the provisions of this Article Twelve applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Debentures of such series, (i) money in an amount, or (ii) U.S.
Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on the Debentures of such series on
the respective Stated Maturities, in accordance with the terms of
this Indenture and the Debentures of such series. As used herein,
"U.S. Government Obligation" means (x) any security that is (i) a
direct obligation of the United States of America for the payment
of which full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality for the United
States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any specific payment of principal of or interest
on any such U.S. Government Obligation specified in Clause (x) and
held by such custodian for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
Holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the case of an election under Section 1202, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that the Holders of the Outstanding Debentures of such
series will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to
be effective with respect to the Debentures of such series and
will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1203, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holder of the Outstanding Debentures of
such series will not recognize gain or loss for Federal income tax
purposes as result of the deposit and Covenant Defeasance to be
effected with respect to the Debentures of such series and will be
subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Debentures of such
series, if then listed on any securities exchange, will not be
delisted as a result of such deposit.
(5) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall have
occurred and be continuing at the time of such deposit or, with
regard to any event specified in Sections 501(4) and 501(5), at
any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
(7) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act of 1940, as amended, unless such trust shall be qualified
under such Act or exempt from regulation thereunder.
(8) At the time of such deposit: (A) no default in the
payment of principal of (or premium, if any) or interest on any
Senior Debt shall have occurred and be continuing or (B) no other
event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, or, in
the case of either Clause (A) or Clause (B) above, each such
default or event of default shall have been cured or waived or
shall have ceased to exist.
Section 1205. Deposited Money and U.S. Government Obligations to be
Held In Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 1206, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
1204 in respect of the Debentures of any series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Debentures of
such series and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of Debentures of such series, of all
sums due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law. Money so held in trust shall not be
subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
receive in respect thereof other than any such tax, fee or other charge that
by law is for the account of the Holders of Outstanding Debentures.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1204 with respect to Debentures of any series that, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Debentures of such series.
Section 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article Twelve with respect to the Debentures of
any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Debentures of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve with respect to Debentures of such series
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1205 with respect to Debentures of such
series in accordance with this Article Twelve; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
Debenture of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of Debentures of such
series to receive such payment from the money so held in trust.
ARTICLE THIRTEEN
Sinking Funds
Section 1301. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debentures of a series except as otherwise
specified as contemplated by Section 301 for Debentures of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Debentures of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of
Debentures of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1302. Each sinking fund payment
shall be applied to the redemption of Debentures of any series as provided for
by the terms of Debentures of such series.
Section 1302. Satisfaction of Sinking Fund Payments
with Debentures.
The Company (1) may deliver Outstanding Debentures of a
series (other than any previously called for redemption) and (2) may apply as
a credit Debentures of a series which have been acquired or redeemed either at
the election of the Company pursuant to the terms of such Debentures or
through the application of permitted optional sinking fund payments pursuant
to the terms of such Debentures or otherwise, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the Debentures of
such series required to be made pursuant to the terms of such Debentures as
provided for by the terms of such series; provided that such Debentures have
not been previously so credited. Such Debentures shall be received and
credited for such purpose by the Trustee at the Redemption Price specified in
such Debentures for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
Section 1303. Redemption of Debentures for Sinking Fund.
Not less than 45 days prior to each sinking fund payment
date for any series of Debentures, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Debentures of that series pursuant to Section 1302 and will also deliver to
the Trustee any Debentures to be so delivered. Not less than 15 nor more than
45 days before each such sinking fund payment date the Trustee shall select
the Debentures to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption
of such Debentures shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE FOURTEEN
Subordination of Debentures
Section 1401. Debentures Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a
Debenture, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article (subject to
the provisions of Article Four and Article Twelve), the payment of the
principal of (and premium, if any) and interest on each and all of the
Debentures are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement, reorganization,
debt restructuring or other similar case or proceeding in connection with any
insolvency or bankruptcy proceeding, relative to the Company or to its assets,
or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such
event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Debt, or provision shall be made for such payment in
cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, before the Holders of the Debentures are entitled to receive
any payment or distribution of any kind or character, whether in cash,
property or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the
Company subordinated to the payment of the Debentures, such payment or
distribution being hereinafter referred to as "Junior Subordinated Payment"),
on account of principal of (or premium, if any) or interest on the Debentures
or on account of the purchase or other acquisition of Debentures by the
Company or any Subsidiary and to that end the holders of Senior Debt shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
including any Junior Subordinated Payment, which may be payable or deliverable
in respect of the Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions
of this Section, the Trustee or the Holder of any Debenture shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any Junior
Subordinated Payment, before all Senior Debt is paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, and if such fact shall, at or prior
to the time of such payment or distribution, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt. Any
taxes that have been withheld or deducted from any payment or distribution in
respect of the Debentures, or any taxes that ought to have been withheld or
deducted from any such payment or distribution that have been remitted to the
relevant taxing authority, shall not be considered to be an amount that the
Trustee or the Holder of any Debenture receives for purposes of this Section.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which
securities are subordinated in right of payment to all then outstanding Senior
Debt to substantially the same extent as the Debentures are so subordinated as
provided in this Article. The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or dissolution
of the Company following the sale of all or substantially all of its
properties and assets as an entirety to another Person or the liquidation or
dissolution of the Company following the sale of all or substantially all of
its properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by sale such
properties and assets as an entirety, as the case may be, shall, as a part of
such consolidation, merger, or sale comply with the conditions set forth in
Article Eight.
Section 1403. Prior Payment to Senior Debt Upon
Acceleration of Debentures.
In the event that any Debentures are declared due and
payable before their Stated Maturity (other than in connection with any
mandatory prepayment of the Debentures of any series in connection with the
redemption of any Preferred Securities of the related series), then and in
such event the holders of the Senior Debt outstanding at the time such
Debentures so become due and payable shall be entitled to receive payment in
full of all amounts due on or in respect of such Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Debentures are entitled to receive any payment (including any payment which
may be payable by reason of any Junior Subordinated Payments) by the Company
on account of the principal of (or premium, if any) or interest on the
Debentures or on account of the purchase or other acquisition of Debentures by
the Company or any Subsidiary; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
Article Thirteen by delivering and crediting pursuant to Section 1302
Debentures which had been acquired (upon redemption or otherwise) prior to such
declaration of acceleration.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Debenture
prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
payment with respect to which Section 1402 would be applicable.
Section 1404. No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default
in the payment of principal of (or premium, if any) or interest on any Senior
Debt, or in the event that any event of default with respect to any Senior
Debt shall have occurred and be continuing and shall have resulted in such
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, unless and until such
default in payment or event of default shall have been cured or waived or shall
have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event of default, then no
payment (including any payment which may be payable by reason of any Junior
Subordinated Payments) shall be made by the Company on account of principal of
(or premium, if any) or interest on the Debentures or on account of the
purchase or other acquisition of Debentures by the Company or any Subsidiary;
provided, however, that nothing in this Section shall prevent the satisfaction
of any sinking fund payment in accordance with Article Thirteen by delivering
and crediting pursuant to Section 1302 Debentures which have been acquired
(upon redemption or otherwise) prior to such default in payment or event of
default.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Debenture
prohibited by the foregoing provisions of this Section, and if such fact
shall, at or prior to the time of such payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
payment with respect to which Section 1402 would be applicable.
Section 1405. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Debentures shall prevent (a) the Company, at any
time except during the pendency of any Proceeding referred to in Section 1402
or under the conditions described in Sections 1403 and 1404, from making
payments at any time of principal of (and premium, if any) or interest on the
Debentures, or (b) the application by the Trustee of any money deposited with
it hereunder to the payment of or on account of the principal of (and premium,
if any) or interest on the Debentures or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of
this Article.
Section 1406. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, or the
provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, the Holders of the
Debentures shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt pursuant to the provisions of this
Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Debentures are subordinated to
the Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights
of the holders of such Senior Debt to receive payments and distributions of
cash, property and securities applicable to the Senior Debt until the
principal of (and premium, if any) and interest on the Debentures shall be
paid in full. If the Trustee or the Holders of the Debentures are not for any
reason entitled to be subrogated to the rights of holders of Senior Debt in
respect of such payment or distribution, then the Trustee or the Holders of
the Debentures may require each holder of Senior Debt to whom any such payment
or distribution is made as a condition to such payment or distribution to
assign its Senior Debt to the extent of such payment or distribution and all
rights with respect thereto to the Trustee on behalf of the Holders. Such
assignment shall not be effective until such time as all Senior Debt has been
paid in full or payment thereof provided for. For purposes of such
subrogation or assignment, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Debt by Holders of the Debentures or the Trustee, shall,
as among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Debentures, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Debentures on the one hand and the holders of Senior Debt on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Debentures is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt, and the Holders of the
Debentures, the obligations of the Company, which are absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, are intended to rank equally with all other general
unsecured obligations of the Company), to pay to the Holders of the Debentures
the principal of (and premium, if any) and interest on the Debentures as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Debentures and creditors of the Company other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders
of Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1408. Trustee to Effectuate Subordination.
Each Holder of a Debenture by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article and appoints the Trustee his or her attorney-in-fact
for any and all such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of the Debentures,
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Debentures to the holders
of Senior Debt, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter
or increase, Senior Debt, or otherwise amend or supplement in any manner
Senior Debt or any instrument evidencing the same or any agreement under which
Senior Debt is outstanding; (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Debt; (iii)
release any Person liable in any manner for the collection of Senior Debt; and
(iv) exercise or refrain from exercising any rights against the Company and
any other Person.
Section 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Debentures. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Debentures, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Debt or from any
trustee, agent or representative therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium,
if any) or interest on any Debenture), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Debt (or a trustee,
agent or representative therefor) to establish that such notice has been given
by a holder of Senior Debt (or a trustee, agent or representative therefor).
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of Senior Debt
to participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 1411. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Debentures shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Debentures, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 1412. Trustee Not Fiduciary For Holders of Senior Debt.
The Trustee, in its capacity as trustee under this
Indenture, shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Debentures or to the
Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
Section 1413. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
Section 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
Section 1415. Defeasance of This Article Fourteen.
The subordination of the Debentures provided by this Article
Fourteen is expressly made subject to the provisions for defeasance or
covenant defeasance in Article Twelve and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Debentures then outstanding shall thereupon cease to be
subordinated pursuant to this Article Fourteen.
ARTICLE FIFTEEN
Miscellaneous
Section 1501. Assignment; Binding Effect.
The Company shall have the right at all times to assign any
of its rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company other than any Subsidiary that is an
insurance company; provided that, in the event of any such assignment, the
Company shall remain jointly and severally liable for all such obligations.
The Company may not otherwise assign any of its obligations under this
Indenture. Except as otherwise provided in this Indenture, Capital may not
assign any of its rights under this Indenture without the prior written
consent of the Company. Subject to the foregoing, this Indenture shall be
binding upon and inure to the benefit of the Company and the Holders and, to
the extent specifically set forth herein, the holders of Senior Debt and
Preferred Securities, from time to time of the Debentures and their respective
successors and assigns.
Section 1502. Third Party Beneficiaries.
The Company hereby acknowledges that, to the extent
specifically set forth herein, prior to a Security Exchange with respect to
the Debentures of any series, the holders of the Preferred Securities of the
related series shall expressly be third party beneficiaries of this Indenture.
Section 1503. Set-off.
Notwithstanding anything to the contrary herein, prior to
any Security Exchange with respect to the Debentures of any series, the
Company shall have the right to set-off any payment with respect to the
Debentures of such series with and to the extent the Company has theretofore
made, or is concurrently on the date of such payment making, a payment under
the Guarantee with respect to Preferred Securities of the related series.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
_____________________________
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
AETNA LIFE AND CASUALTY
COMPANY
By......................
Attest:
........................
THE FIRST NATIONAL BANK
OF CHICAGO
By......................
Attest:
........................
STATE OF CONNECTICUT )
) ss.:
COUNTY OF HARTFORD )
On the .... day of ..........., 1994, before me personally
came ..........................., to me known, who, being by me duly sworn,
did depose and say that (s)he is .................... of AETNA LIFE AND
CASUALTY COMPANY, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that (s)he
signed her/his name thereto by like authority.
........................
STATE OF ILLINOIS )
) ss.:
COUNTY OF )
On the .... day of ..........., 1994, before me personally
came ..........................., to me known, who, being by me duly sworn,
did depose and say that (s)he is .................... of THE FIRST NATIONAL
BANK OF CHICAGO, one of the corporations described in and which executed the
foregoing instrument; that (s)he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that (s)he
signed her/his name thereto by like authority.
........................