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Principal Financial Group - Fiscal Agency Agreement Dated August 25, 1999
FISCAL AGENCY AGREEMENT
among
PRINCIPAL FINANCIAL GROUP (AUSTRALIA) HOLDINGS PTY LIMITED
(ACN 087 430 331)
as Issuer
and
PRINCIPAL FINANCIAL SERVICES, INC.
as Guarantor
and
U.S. BANK TRUST NATIONAL ASSOCIATION
as Fiscal Agent
dated as of August 25, 1999
$200,000,000 7.95% Notes due August 15, 2004
and
$465,000,000 8.20% Notes due August 15, 2009 2
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions ..................................... 1 SECTION 1.2. Rules of Construction ........................... 10 SECTION 1.3. Compliance Certificates and Opinions ............ 11
ARTICLE II
SECURITY AND GUARANTEE FORMS
SECTION 2.1. Forms of Securities Generally ................... 11 SECTION 2.2. Form of Face of 7.95% Notes ..................... 15 SECTION 2.3. Form of Reverse of 7.95% Notes .................. 19 SECTION 2.4. Form of Fiscal Agent's Certificate of
Authentication of 7.95% Notes ............. 28 SECTION 2.5. Form of Face of 8.20% Notes ..................... 28 SECTION 2.6. Form of Reverse of 8.20% Notes .................. 33 SECTION 2.7. Form of Fiscal Agent's Certificate of
Authentication of 8.20% Notes ............. 42 SECTION 2.8. Form of Guarantee ............................... 42 SECTION 2.9. Registrar, Paying Agent, Depository and
Custodian ................................. 48 SECTION 2.10. Payment on Securities .......................... 49 SECTION 2.11. Holder Lists ................................... 50 SECTION 2.12. Outstanding Securities ........................ 51 SECTION 2.13. Treasury Securities ............................ 51
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms ............................... 52 (*) SECTION 3.2. Denominations ................................. 54
SECTION 3.3. Execution, Authentication, Delivery
and Dating ............................. 54
SECTION 3.4. Temporary Securities Other Than Regulation S
Temporary Securities .................... 56
SECTION 3.5. Registration, Registration of Transfer and
Exchange Generally; Restrictions on
Transfer and Exchange ..................... 57
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SECTION 3.6. Mutilated, Destroyed, Lost and Stolen
Securities ................................... 67 SECTION 3.7. Payment of Interest; Interest
Rights Preserved ........................... 68 SECTION 3.8. Persons Deemed Owners ............................. 70 SECTION 3.9. Cancellation ...................................... 70 SECTION 3.10. Computation of Interest ........................... 71
ARTICLE IV
PAYMENT RESTRICTIONS
SECTION 4.1. Unpaid Amounts .................................... 71
ARTICLE V
COVENANTS
SECTION 5.1. Payment of Principal and Interest ................. 72 SECTION 5.2. Rule 144A Information ............................. 72 SECTION 5.3. Other Information ................................. 72 SECTION 5.4. Corporate Existence ............................... 73 SECTION 5.5. Compliance with Investment Company Act ............ 73 SECTION 5.6. Additional Amounts ................................ 73 SECTION 5.7. Limitations upon Liens ............................ 76 SECTION 5.8. Limitation on the Disposition of Stock of
Restricted Subsidiaries ...................... 76 SECTION 5.9. Annual Review Certificate; Notice of Defaults
or Events of Default ......................... 77
ARTICLE VI
REORGANIZATION, CONSOLIDATION, MERGER OR
SALE BY THE COMPANY
SECTION 6.1. Consolidation, Merger or Sale of Assets
Permitted ................................... 78
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.1. Events of Default ................................. 80 SECTION 7.2. Acceleration; Rescission and Annulment ............ 82
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SECTION 7.3. Collection of Indebtedness and Suits for
Enforcement by Fiscal Agent ................. 84 SECTION 7.4. Fiscal Agent May File Proofs of Claim ............. 84 SECTION 7.5. Fiscal Agent May Enforce Claims without
Possession of Securities .................... 85 SECTION 7.6. Delay or Omission Not Waiver ...................... 85 SECTION 7.7. Waiver of Past Defaults ........................... 86 SECTION 7.8. Control by Majority ............................... 86 SECTION 7.9. Limitation on Suits by Holders .................... 86 SECTION 7.10. Rights of Holders to Receive Payment ............. 87 SECTION 7.11. Application of Money Collected ................... 88 SECTION 7.12. Restoration of Rights and Remedies ............... 88 SECTION 7.13. Rights and Remedies Cumulative ................... 89 SECTION 7.14. Waiver of Usury, Stay or Extension Laws .......... 89 SECTION 7.15. Undertaking for Costs ............................ 89 SECTION 7.16. Judgment Currency ................................ 90
ARTICLE VIII
REDEMPTION
SECTION 8.1. Applicability of Article .......................... 90 SECTION 8.2. Election to Redeem; Notice to
Fiscal Agent ................................ 91 SECTION 8.3. Selection by Fiscal Agent of Securities to Be
Redeemed .................................... 91 SECTION 8.4. Notice of Redemption .............................. 92 SECTION 8.5. Deposit of Redemption Price ....................... 93 SECTION 8.6. Securities Payable on Redemption Date ............. 93 SECTION 8.7. Securities Redeemed in Part ....................... 94 SECTION 8.8. Optional Redemption ............................... 94 SECTION 8.9. Optional Redemption Due to Changes in Tax
Treatment ................................... 96
ARTICLE IX
FISCAL AGENT
SECTION 9.1. Duties of Fiscal Agent ............................ 97 SECTION 9.2. Rights of Fiscal Agent ............................ 98 SECTION 9.3. Individual Rights of Fiscal Agent ................. 99 SECTION 9.4. Fiscal Agent's Disclaimer ......................... 99 SECTION 9.5. Compensation and Indemnity ........................ 99 SECTION 9.6. Replacement of Fiscal Agent ....................... 100
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SECTION 9.7. Successor Fiscal Agent,
Agents by Merger, Etc. ...................... 100 SECTION 9.8. Eligibility ....................................... 101 SECTION 9.9. Notice of Defaults ................................ 101
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1. Without Consent of Holders ..................... 101 SECTION 10.2. With Consent of Holders ........................ 102 SECTION 10.3. Revocation and Effect of Consents .............. 104 SECTION 10.4. Notation on or Exchange of Securities .......... 104 SECTION 10.5. Fiscal Agent to Sign Amendments, Etc ........... 104
ARTICLE XI
MEETINGS OF HOLDERS
SECTION 11.1. Purposes for Which Meetings
May Be Called ............................... 105 SECTION 11.2. Call, Notice and Place of Meetings ............. 105 SECTION 11.3. Persons Entitled to Vote at Meetings ........... 106 SECTION 11.4. Quorum ......................................... 106 SECTION 11.5. Action by Written Consent ...................... 107 SECTION 11.6. Determination of Voting Rights; Conduct and
Adjournment of Meetings ..................... 107 SECTION 11.7. Counting Votes and Recording Action of
Meetings .................................... 108
ARTICLE XII
GUARANTEE
SECTION 12.1. Guarantee ...................................... 108 SECTION 12.2. Execution and Delivery of Guarantee ............ 114
ARTICLE XIII
ASSUMPTION BY GUARANTOR
SECTION 13.1. Mandatory Assumption by Guarantor upon
Failure to Consummate Acquisition ........... 115 SECTION 13.2. Optional Assumption by Guarantor ................. 115
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ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.1. Option of Company and Guarantor to Effect
Defeasance or Covenant Defeasance ........... 116 SECTION 14.2. Defeasance and Discharge ......................... 116 SECTION 14.3. Covenant Defeasance .............................. 117 SECTION 14.4. Conditions to Defeasance or Covenant
Defeasance .................................. 117 SECTION 14.5. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions .................... 121 SECTION 14.6. Reinstatement .................................... 121
ARTICLE XV
MISCELLANEOUS
SECTION 15.1. Notices ........................................ 122 SECTION 15.2. Governing Law .................................. 123 SECTION 15.3. No Recourse against Others ..................... 123 SECTION 15.4. Duplicate Originals ............................ 124 SECTION 15.5. Headings and Table of Contents ................. 124 SECTION 15.6. Successor and Assigns .......................... 124 SECTION 15.7. Separability ................................... 124 SECTION 15.8. Legal Holidays ................................. 124
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FISCAL AGENCY AGREEMENT dated as of August 25, 1999, between PRINCIPAL FINANCIAL GROUP (AUSTRALIA) HOLDINGS PTY LIMITED (ACN 087 430 331), a company organized under the laws of the State of Victoria, Commonwealth of Australia (the "Company"), PRINCIPAL FINANCIAL SERVICES, INC., a company organized under the laws of the State of Iowa, as Guarantor (the "Guarantor"), and U.S. BANK TRUST NATIONAL ASSOCIATION, a banking organization organized under the laws of the United States, as Fiscal Agent (together with any successor as Fiscal Agent hereunder, the "Fiscal Agent").
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company's 7.95% Notes due August 15, 2004 (the "7.95% Notes") and 8.20% Notes due August 15, 2009 (the "8.20% Notes" and together with the 7.95% Notes, the "Securities") and any Additional Securities (as defined below) issued hereunder:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
In this Agreement, unless the context otherwise requires:
"Acquisition" has the meaning set forth in the definition of "Acquisition Agreement";
"Acquisition Agreement" means the Share Sale Deed, dated June 17, 1999, among BT Investments (Australia) LLC, BT Foreign Investment Corporation, BT New Zealand Limited, BT International (Delaware), Inc. and Nominees (H.K.) Limited (collectively, the "Vendors"), Deutsche Bank AG (the "Warrantor"), Bankers Trust Corporation (the "Vendors' Guarantor"), Principal Financial Group (Australia) Pty Limited (the "Purchaser") and the Guarantor, pursuant to which the Purchaser agreed to purchase from the vendors and the Vendors agreed to sell to the Purchaser the Sale Shares in consideration for the Purchase Price (the "Acquisition");
"Additional Amounts" has the meaning set forth in Section 5.6; 8
"Additional Securities" means Securities of any series issued from time to time after the Issue Date under the terms of this Agreement (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5, 3.6 or 8.7);
"Agent" means any Registrar, Paying Agent, Co-Registrar or Custodian;
"Agent Member" has the meaning set forth in Section 3.5;
"Agreement" means this Agreement, as amended or supplemented from time to time;
"Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, Euroclear and Cedelbank, in each case to the extent applicable to such transaction and as in effect at the time of such transfer or transaction;
"Bankruptcy Code" has the meaning set forth in Section 12.1;
"Bankruptcy Law" has the meaning set forth in Section 7.1;
"Beneficial Holder" means each participant in the Depository that holds an interest in a Security, as indicated in the Participants List;
"Board of Directors" means, with respect to the Company or the Guarantor, either the board of directors of the Company or the Guarantor, as the case may be, or any duly authorized committee of that board. Except as otherwise provided or unless the context otherwise requires, each reference herein to the "Board of Directors" shall mean the Board of Directors of the Company;
"Board Resolution" of the Company or the Guarantor means a copy of a resolution certified by an Officer, the Secretary or an Assistant Secretary or by other authorized designees of the Board of Directors of the Company or the Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in full force and effect on
-2- 9 the date of such certification, and delivered to the Fiscal Agent. Except as otherwise expressly provided or unless the context otherwise requires, each reference herein to a "Board Resolution" shall mean a Board Resolution of the Company;
"Business Day" means any day other than a Saturday, Sunday or any other day on which banking institutions are authorized or required by law or executive order to close in New York, New York or Des Moines, Iowa;
"Cedelbank" means Cedelbank, societe anonyme (or any successor securities clearing agency);
"Code" means the Internal Revenue Code of 1986, as amended from time to time. Any reference to a particular section of the Code shall include any successor Code section;
"Commissioner" means the Commissioner of the Insurance Division of the Department of Commerce of the State of Iowa, or such governmental officer, body or authority as may after the date hereof succeed to such Commissioner as the primary regulator of Principal Life's financial condition under applicable law;
"Company Order" means any request, instruction, order or directive signed by an Officer;
"Co-Registrar" has the meaning set forth in Section 2.9;
"Covenant Defeasance" has the meaning specified in Section 14.2;
"Custodian" has the meaning set forth in Section 2.9;
"Debt" means indebtedness for money borrowed;
"Default" means any event which is, or after notice or passage of time, or both, would be, an Event of Default;
"Defaulted Interest" has the meaning specified in Section 3.7;
"Defeasance" has the meaning specified in Section 14.3;
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"Department" means the Insurance Division of the Department of Commerce of the State of Iowa;
"Depositary" means, with respect to any Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Company to act as Depositary for such Securities (or any successor securities clearing agency so registered);
"Depositary Securities Certification" has the meaning set forth in Section 2.1;
"Depository" means, with respect to the Securities issuable or issued in whole or in part in global form, the person specified in Section 2.9 as the Depository with respect to the Securities, until a successor shall have been appointed and becomes such pursuant to the applicable provisions of this Agreement, and, thereafter, "Depository" shall mean such successor;
"Dollars or $" means such coin or currency of the United States of America which is legal tender for payment of public and private debts;
"DTC" means The Depository Trust Company, a New York corporation;
"Euroclear" means the Euroclear Clearance System (or any successor securities clearing agency);
"Event of Default" has the meaning set forth in Section 7.1;
"Exchange Act" means the Securities Exchange Act of 1934, as amended;
"GAAP" shall mean generally accepted accounting principles of the relevant jurisdiction, as in effect from time to time;
"Global Security" means a Security that is registered in the Security Register in the name of a Depositary or a nominee thereof;
"Guarantee" means any Guarantee of the Guarantor endorsed on a Security authenticated and delivered pursuant
-4- 11 to this Fiscal Agency Agreement and shall include the Guarantee set forth in Section 2.8;
"Holder" means a Person in whose name a Security is registered in the Security Register;
"Initial Purchasers" means each of Goldman, Sachs & Co., J.P. Morgan Securities Inc., Credit Suisse First Boston Corporation and Salomon Smith Barney Inc., each as an initial purchaser under the Purchase Agreement;
"Institutional Accredited Investor" means an institutional investor that is an "accredited investor" within the meaning of Rule 501(a)(l), (2), (3) or (7) of Regulation D under the Securities Act;
"Insurance Law" means the insurance laws promulgated under the Code of Iowa;
"Interest Payment Date" shall mean (1) with respect to the 7.95% Notes, each February 15 and August 15, commencing February 15, 2000 and (2) with respect to the 8.20% Notes, each February 15 and August 15, commencing February 15, 2000;
"Issue Date" shall mean August 25, 1999.
"Lien" means any mortgage, deed of trust, pledge, lien, security interest or other encumbrance (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof, any filing or agreement to give a lien or to file a financing statement as a debtor under the Uniform Commercial Code or any similar statute other than to reflect ownership by a third party of property leased to the Guarantor or any Restricted Subsidiary under a lease which is not in the nature of a conditional sale or title retention agreement);
"Make-Whole Amount" has the meaning set forth in Section 8.8;
"Maturity", when used with respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise;
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"Officer" means the Chairman of the Board, the President, any Executive or Senior Vice President, or any Vice President of the Company or the Guarantor, as the case may be;
"Officers' Certificate" means a certificate signed by at least two Officers or by one Officer and any other person duly authorized by the Board of Directors of the Company or the Guarantor, as the case may be;
"Opinion of Counsel" means a written opinion from legal counsel who is reasonably acceptable to the Fiscal Agent. The counsel may be an employee of or counsel to the Company;
"Outstanding Securities" means the outstanding Securities determined in accordance with Section 2.12;
"Owner Securities Certification" has the meaning set forth in Section 2.1;
"Participants List" means the list furnished by the Depository showing persons that have a beneficial interest in the Securities evidenced by any Security in global form held by the Depository and the amount of such interest;
"Paying Agent" has the meaning set forth in section 2.9;
"Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof;
"Predecessor Security" of any particular Security means every Security issued before, and evidencing all or a portion of the same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security;
"Principal" or "principal amount" means principal of the Securities and, where the context so requires, premium, if any, payable upon redemption of the Securities in accordance with paragraph two thereof;
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"Principal Life" means Principal Life Insurance Company, an insurance company organized under the laws of the State of Iowa;
"Principal Mutual Holding Company" means Principal Mutual Holding Company, a mutual insurance holding company organized under the laws of the State of Iowa;
"Purchase Agreement" means the Purchase Agreement dated August 18, 1999, among the Company, the Guarantor and the Initial Purchasers;
"Purchase Price" has the meaning ascribed to such term in the Acquisition Agreement;
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under the Securities Act;
"Receiver" has the meaning set forth in Section 7.1;
"Redemption Date" has the meaning set forth in Section 8.8;
"Redemption Price" has the meaning set forth in Section 8.8;
"Registrar" has the meaning set forth in Section 2.9;
"Register" means the register of each series of the Securities maintained pursuant to Section 2.9;
"Regular Record Date" for the interest payable on any Interest Payment Date means February 1 and August 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date;
"Regulation S" means Regulation S under the Securities Act (or any successor provision), as it may be amended from time to time;
"Regulation S Global Securities" has the meaning specified in Section 2.1;
"Reinvestment Rate" has the meaning set forth in Section 8.8;
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"Responsible Officer" means any officer or assistant officer of the Fiscal Agent assigned by the Fiscal Agent to administer the transactions contemplated hereby;
"Restricted Global Securities" has the meaning specified in Section 2.1;
"Restricted Period" has the meaning set forth in Section 2.1;
"Restricted Securities" has the meaning set forth in Section 2.1;
"Restricted Subsidiary" means (i) the Company and (ii) a Subsidiary which is a regulated insurance company principally engaged in one or more of the life, annuity, property and casualty insurance businesses; provided that no such Subsidiary shall be a Restricted Subsidiary if (1) (a) the total assets of such Subsidiary are less than 10% of the total assets of the Guarantor and its consolidated Subsidiaries (including such Subsidiary), in each case as set forth on the most recent fiscal year-end balance sheets of such Subsidiary and the Guarantor and its consolidated Subsidiaries, respectively, and computed in accordance with GAAP, and (b) the total revenues of such Subsidiary are less than 10% of the total revenues of the Guarantor and its consolidated Subsidiaries (including such Subsidiary), in each case as set forth on the most recent fiscal year-end income statements of such Subsidiary and the Guarantor and its consolidated Subsidiaries, respectively, and computed in accordance with GAAP or (2) in the judgment of the Board of Directors, as evidenced by a Board Resolution, such Subsidiary is not material to the financial condition of the Guarantor and its consolidated Subsidiaries taken as a whole;
"Rule 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time;
"Rule 144A Information" has the meaning set forth in Section 5.2;
"Sale Shares" has the meaning ascribed to such term in the Acquisition Agreement;
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"Securities" means the 7.95% Notes and the 8.20% Notes, collectively;
"Securities Act" means the Securities Act of 1933, as amended;
"Security Register" and "Security Registrar" have the respective meanings specified in Section 3.5;
"series of Securities" means the 7.95% Notes, collectively, or the 8.20% Notes, collectively or any Additional Securities, collectively, as the context requires;
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Fiscal Agent pursuant to Section 3.7;
"Stated Maturity", when used with respect to any Security or any instalment of interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such instalment of interest, as the case may be, is due and payable;
"Stated Rate" means (i) with respect to the 7.95% Notes, a rate of interest equal to 7.95% per annum, and (ii) with respect to the 8.20% Notes, a rate of interest equal to 8.20% per annum;
"Statistical Release" has the meaning set forth in Section 8.8;
"Subsidiary" means, with respect to any Person, (i) a corporation more than 50% of the combined voting power of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof, (ii) any other Person (other than a corporation) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof, or (iii) any other Person which is otherwise controlled by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries of such Person;
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"Temporary Regulation S Global Securities" has the meaning set forth in Section 2.1;
"Total Assets" means, at any date, the total assets appearing on the most recently prepared consolidated balance sheet of the Guarantor and its consolidated Subsidiaries as of the end of a fiscal quarter of the Guarantor, prepared in accordance with GAAP;
"Transferee Securities Certification" has the meaning set forth in Section 3.5;
"Unpaid Amount" has the meaning set forth in Section 4.1;
"Unrestricted Securities" has the meaning set forth in Section 2.1; and
"Voting Stock" of any Person means capital stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
SECTION 1.2. Rules of Construction. In this Agreement, unless the context otherwise requires:
(1) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement and the forms of
Security included as Exhibits hereto as a whole, and not to any
particular Article, Section or other subdivision;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions;
and
(5) any reference to a party includes its successors from
time to time.
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SECTION 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the Fiscal Agent to take or refrain from taking any action under any provision of this Fiscal Agency Agreement, the Company or the Guarantor shall furnish to the Fiscal Agent such certificates and opinions as may be as required by the Fiscal Agent. Each such certificate or opinion shall be given in the form of an Officer's Certificate, if to be given by an officer of the Company or the Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with any requirements set forth in this Fiscal Agency Agreement.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 5.6) shall include,
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
ARTICLE II
SECURITY AND GUARANTEE FORMS
SECTION 2.1. Forms of Securities Generally.
The Securities shall be in substantially the forms set forth in this Article, and the Guarantee to be endorsed
-ll- 18 thereon shall be in substantially the form set forth in Section 2.8 of this Agreement, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, 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 Depositary thereof, the Code and regulations thereunder, or as may, consistently herewith, be determined by the officers executing such Securities or Guarantee endorsed thereon, as the case may be, as evidenced by their execution thereof. The Fiscal Agent's certificates of authentication shall be in substantially the form set forth in Section 2.4, with respect to the 7.95% Notes and Section 2.7 with respect to the 8.20% Notes. The Company shall approve the form of the Securities and any notation, legend or endorsement on the Securities.
The definitive Securities and the Guarantee endorsed thereon shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange on which the Securities or the Guarantee endorsed thereon, as the case may be, may be listed, all as determined by the officers executing such Securities or Guarantee as evidenced by their execution thereof.
In certain cases described elsewhere herein, the legends set forth in the first seven paragraphs of Section 2.2 or Section 2.5, as the case may be, may be omitted from Securities issued hereunder.
Securities offered and sold in their initial distribution in reliance on Regulation S shall be initially issued in the form of temporary Global Securities, one or more for each series, in fully registered form without interest coupons, substantially in the form of Security set forth in Sections 2.2 and 2.3 or Sections 2.5 and 2.6, as the case may be, with such applicable legends as are provided for in Section 2.2 and 2.5, as the case may be. Such Global Securities shall be registered in the name of the U.S. Depositary or its nominee and deposited with the Fiscal Agent, at its New York office, as custodian for the U.S. Depositary, duly executed by the Company and authenticated by the Fiscal Agent as hereinafter provided, for credit to the respective accounts at the U.S. Depositary
-12- 19 of the depositories for Morgan Guaranty Trust Company of New York, Brussels office, as operator of Euroclear, or Cedelbank. Until such time as the Restricted Period (as defined below) shall have terminated, such temporary Global Securities shall be referred to herein as "Temporary Regulation S Global Securities." Until such time as the Restricted Period shall have terminated, investors may hold beneficial interests in such Global Securities only through Euroclear and Cedelbank, unless delivery of such beneficial interest upon transfer shall be made through a Restricted Global Security in accordance with the certification requirements discussed below in Section 3.5(b)(v). After such time as the Restricted Period shall have terminated, such certification requirements shall no longer be required for such transfers. After such time as the Restricted Period shall have terminated and the certifications referred to below in the next succeeding paragraph shall have been provided, such temporary Global Securities shall be exchanged for interests in like Global Securities, referred to herein collectively as the "Regulation S Global Securities," substantially in the form of Security set forth in Section 2.2 and 2.3 or Sections 2.5 or 2.6, as the case may be, with such applicable legends as are provided for in Section 2.2 or Section 2.5. As used herein, the term "Restricted Period" means the period up to (but not including) the 40th day following the later of (i) the day that Goldman, Sachs & Co., as representative of the several initial purchasers of the Securities, advises the Company and the Fiscal Agent of the day on which the Securities are ...
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